Child Maintenance Applications, investigation, preparation and enquiries – What you need to know, and more.

Everything you need to know when making a maintenance application at the maintenance court. This includes the filing of the complaint, up until the formal enquiry before a magistrate.

The internet is well-stocked with information written by Advocate Muhammad Abduroaf regarding child maintenance applications and related issues. As he gains more experience and sees the law develop, so does he publish and spread the invaluable knowledge. However, having all that information on different webpages is not forward-thinking. Therefore, we needed to do something about it. We, therefore, decided to provide this lengthy child maintenance application online post which provides practical information from start to finish. Let us begin.

Child Maintenance and Applications – How does it work?

Parents must pay child maintenance according to their means. So, if a child’s expenses each month is R 90 (obviously this is a fictitious example) and the father earns R 1 000 a month and the mother R 500 a month, then if all else is equal, the father should contribute R 60 towards the minor child’s expenses, and the mother, R 30. Now that is the long and short of the matter. However, other factors also play a role. They include the necessary expenses of each parent, which determines how much they should contribute, as well as what assets the parents own. For example, if a father earns R 200 a month, and the mother R R600 – 00, the father would pay the majority of the minor child’s expenses if he owns other assets worth R 100 000 – 00 and the mother none. If a parent is not happy with the maintenance he or she is receiving, an application may then be made to the maintenance court for a maintenance order.

Child maintenance procedure in the maintenance court

The procedures to be followed in instituting a complaint for child maintenance is regulated by the Maintenance Act 99 of 1998. Let us first unpack the basics.

From whom may maintenance be claimed?

Maintenance (personal, spousal or child) may be claimed from persons who have a legal obligation to maintain you. For instance, children can claim maintenance from their parents or a wife from her husband and vice versa. Seeing that children are minors, they are assisted by their parent or guardian through the maintenance process, but in fact, it is the child who is claiming.

The best interests of the minor child’s principle

When it comes to child maintenance, the child’s best interests are of paramount importance. This principle is immortalised in our Constitution and applied in our Courts of Law. Therefore, concerning child maintenance matters, and specifically to the child maintenance court, the moment a parent applies to child maintenance, the principle should apply. Before we move on, on a side note, it is not only child maintenance that the maintenance court deals with. As stated further above, a spouse may take the other to the maintenance court for personal maintenance.

Parental Maintenance Obligations

Both parents have a duty of support towards their minor child’s proper living and upbringing. This should be according to their means, standard of living, station in life, and the needs of the child. This is found in our common law and further applies to divorced parents. According to section 15(2) of the Maintenance Act, the duty “extends to such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.” Furthermore, the duty is not discharged where one parent earns substantially more than the other. According to section 15(3) of the Maintenance Act, in determining the maintenance amount, the maintenance court must take into consideration the following: “(i) that the duty of supporting a child is an obligation which the parents have incurred jointly; (ii) that the parents’ respective shares of such obligation are apportioned between them according to their respective means; and (iii) that the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage. (b) Any amount so determined shall be such amount as the maintenance court may consider fair in all the circumstances of the case.” Lastly, there is an onus on both the maintenance officer and the maintenance magistrate in placing evidence before the court in determining a fair maintenance amount. This is our starting point going forward.

What is first looked at in a child maintenance matter? Income and Expenses?

Your first step when wanting to claim child maintenance is to get hold of all your proof of income. For example, payslips. If you are not working for an employer, you should get hold of proof that you earn a certain amount of money per month. Bank statements and financial records would suffice for now. If you are unemployed, you need to show proof thereof. For example, a termination letter from your previous employer.

Compile and gather all your proof of expenses for you and your child

This is a crucial step. You must create a list of all monthly expenses incurred for yourself and your children. This would include rent, groceries, clothes, entertainment, etc. This information is required when filling in the maintenance application form that is dealt with in the next step below.

Details of the parent you are claiming child maintenance from

Find out all the details of the person from whom you are requesting maintenance. For example, his/her home and work address and identity number. You would also need to obtain the contact details of that person. This would expedite matters. If you do not have all the information, you can still proceed with your application at court. The maintenance investigator referred to further below would be of assistance.

What do I do at the Maintenance Court?

Go to the Maintenance Court closes to your area and obtain an “Application for Maintenance Order Form” also referred to as “Form A”. Use the information you have gathered in Step 1 and fill in the form. The form is in the form of an affidavit and you, therefore, have to swear to the correctness of the information under oath and sign. Therefore, do not hide any information for the Court. Caution: If your information is not 100 % correct, you may be cross-examined on such correctness in Court and if it is found that you were not honest, this would not be in your favour. If you require any assistance in filling in the form, the maintenance officers would be happy to assist you. Once you have filled in the Application for Maintenance Order Form, return it to the maintenance officer who will process it for you. If the maintenance officer can provide you with a reference/case number there and then, request it. The Maintenance Court will send you and the person you are claiming maintenance from a letter or subpoena to appear at the Maintenance Court for an inquiry with the maintenance officer. Diarise the date immediately and make arrangements with your work and a babysitter as soon as possible. If you miss the date, it can take months to get another.

Processing the Maintenance Application

When a parent approaches the maintenance court for child maintenance, the maintenance clerk must expeditiously process the application. In doing so, the clerk through other resources of the maintenance court, should ascertain the details of the other parent, and ensure that he or she is brought to court as soon as possible for a maintenance enquiry before a maintenance officer. Therefore, for example, should the maintenance clerk not have the living or work address of the father, then he or she must enlist the assistance of the maintenance investigator to obtain it. For that, he or she can make use of the search and tracking resources the maintenance investigator makes use of and has access to.

What do you do while waiting on the court date?

From the time you left the office of the maintenance officer and even from the time you decided to claim maintenance, keep all receipts you received for any items bought for you and your child. Therefore, if you buy nappies for your child or even a toy, keep that receipt as if it is gold. This is due to you having to prove to the court that you do spend money on the child and you have the receipts to prove it.

Getting the non-paying parent to the maintenance court

After the maintenance application has been processed, the maintenance court must ensure that the non-paying parent makes his or her way to the maintenance court as soon as possible for a maintenance enquiry. This enquiry is held before a maintenance officer. Even if the maintenance court’s diary is quite full, it should still expedite this process, giving both parents adequate time to make arrangements to appear in the maintenance court. Therefore, if the next available date for a maintenance enquiry is in three (3) months, the parties can use this time to make arrangements with their work, obtain necessary information for the enquiry, or make alternative school travelling arrangements for the kids. There should therefore not be a delay in notifying the parents of the date of the maintenance enquiry. Furthermore, when notified of the court date, both parents receive a document stating what information they should bring with to the maintenance enquiry. These include three (3) months bank statements, and salary advice as well as proof of expenses.

Giving the parties adequate time to obtain this information would be vital and, in the child’s best interests. The last thing we want is for the matter to be postponed to another date due to either parent not having been given adequate time to obtain the documents, even though the mother made the application many months ago. You will soon hear from the Maintenance Court where they will be giving you a date to appear back at the Maintenance Court for an inquiry. They would either inform you by post or by a subpoena. On that date, both you and the person from whom maintenance is claimed would have to appear. If you are planning on making use of a legal representative, inform him/her early about the date so that he/she can be available to assist you at Court. In the notice to appear for the maintenance enquiry, it is asked that you bring proof of all expenses and income for you and your child. This is why it is so very important for you to keep all proof of expenditure in a safe place. Hint: If you can afford to, bring original proof of expenditure and income and a photocopy thereof. The original you would then be able to take back home and bring it back when requested and the copy will stay in the Court file.

The maintenance enquiry before a maintenance officer

The maintenance enquiry before the maintenance officer is the next legal step in the process. This is where things get interesting. Sometimes, at this enquiry, it is the first time the parents are in the same room together, since the child was conceived. Quite often, both parents do not know much about the current financial affairs of the other parent. The parent asked to pay child support, furthermore, does not know what the child costs to maintain. The maintenance officer will speak to each of the parties and look at the documents provided. Each party will get a chance to explain why he/she requires maintenance and also why he/she can’t afford the maintenance requested. The maintenance officer will as far as possible try to resolve the matter there and then without it having to go to court. If the parties can agree to an amount, this amount can be made an order of the court. If, however, an agreement cannot be reached at this stage, the matter, depending on the Court will either be referred to a prosecutor or for trial. Remember, if you are a father or a person currently paying maintenance/child support, a reduction is possible. The same goes for an application for an increase in maintenance/child support Again, the golden standard in which the enquiry should be conducted is that of the child’s best interests. This is of paramount importance. The maintenance officer should, therefore, ensure that all the financial information about the parties are properly disclosed. This is very important. However, at the same time, the maintenance officer should try to settle the matter, taking into consideration the child’s best interests. Should the parents not be forthcoming regarding their income and expenses, and the needs of the child, then the maintenance officer must subpoena witnesses if need be and make use of the maintenance investigator which we deal with next.

Denial of paternity – Is it sometimes a delaying tactic?

What sometimes happens, is that the father denies paternity. This he would either do out of spite or due to genuine doubt on his side. This would often be the case if there was a brief encounter between the parents when the child was conceived. Sometimes the father is married to someone else, and for the sake of his current marriage, he needs to deny paternity. Once the paternity tests are finalised, the parties would need to return to court again for the results. If the results are positive, in that he is the father, then the enquiry proceeds. If he is not the biological father, the application is removed from the court roll.

The maintenance investigator – Who is it?

Section 7(1)(d) of the Maintenance Act empowers the maintenance officer to “require a maintenance investigator of the maintenance court concerned to perform such other functions as may be necessary or expedient to achieve the objects of this Act.” Section 7(2)(e) of the Maintenance Act empowers the maintenance investigator after so being instructed by the maintenance officer, to: “gather information concerning- (i) the identification or whereabouts of any person who is legally liable to maintain the person mentioned in such complaint or who is allegedly so liable; (ii) the financial position of any person affected by such liability; or (iii) any other matter which may be relevant concerning the subject of such complaint; or (f) gather such information as may be relevant concerning a request referred to in subsection (1) (c). Now that we looked at the importance of the role of the maintenance officer and maintenance investigator, we move on to the role of the maintenance magistrate. This is where the formal enquiry takes place.

The maintenance investigator at the Court

Each maintenance court has a maintenance investigator. What this investigator does is gather evidence in a maintenance court case. However, in practice, no one may tell you that there is a maintenance investigator who could assist you in your case. This could be because of the huge amount of maintenance cases that come through the doors of the court. Insist that the maintenance court instructs the maintenance investigator to investigate the financial affairs of the other parent. This you should even more so insist on if the father does not even provide the court with a copy of his salary slip and outline of expenses.

Summary of Changes brought by the Maintenance Amendment Act (Act No.9 of 2015)

Not too long ago, amendments were made to the Maintenance Act. Below are some of the amendments:

If there was a verbal or written maintenance agreement (which was not made an order of the court), the maintenance court can be approached to substitute or discharge it. [Section 6(c)]
You may lodge a complaint at the maintenance court within the area of jurisdiction of where you reside, carry on business or are employed. [Section 6(2)]
The maintenance court may issue a direction directing one or more electronic communications service providers to furnish the court with the contact information of the person a complaint has been made against to obtain his or her whereabouts. For example, Vodacom, MTN or Cell C can be approached to provide their client’s contact details. [Section 7(3)]
The maintenance court can make an interim maintenance order even if the other party does not agree to it. [Section 10(6)]
The maintenance court can provide your details to credit bureaus if you are in default and civil execution of a maintenance order took place. [Section 26(2A)]
Non-compliance with maintenance orders could have you imprisoned for up to 3 (three) years. [Section 31]

The Evidence – What else can I do to get the best our of my maintenance enquiry?

The outcome of your child maintenance matter would depend on the evidence presented. If there is no proof that the child cost so much, or the other parent earns that much, then you would have serious challenges convincing the court. Below are things to look into when dealing with your maintenance matter.

The father’s employer – Can he be brought to court?

Ask the maintenance court to issue a subpoena against the father’s employer for the salary advice of the father. Also, request details of the father’s pension interest the father may have.

The father’s banking account – Can the court obtain it?

Obtain the father’s bank statements. Here you should ask the court to subpoena various banking institutions for bank statements of the father. Bank statements hold in them valuable information about the lifestyle of a person. You may find out that the father spends half his money on his cell phone or luxury clothing. You can use this information to show the court that the father can tighten his belt and spend more money on his child. What sometimes happens is, you may find additional income coming into the father’s banking account.

Father’s Credit Profile – Is it possible to obtain it without his consent?

Have the maintenance court obtain a credit profile of the father. From the profile, valuable information can be obtained. For example, where he last applied for credit, employment and residential details. If the father says he does not have money, but he applied for credit to purchase a new car, clearly there is money.

Social media (Facebook, Twitter, Instagram, Pinterest etc.) – Is it of any use?

These days, many people publish their lives on social media. If the father, in this case, keeps loading pictures and posts of how he lives the good life; that information may be used to show the maintenance court that the father lives a life different than what he wants the court and you to believe. Many people also make use of LinkedIn accounts. On it, they provide updated employment details. This would be useful to show the court should the father say he is an admin clerk. but on LinkedIn tell the world he is a manager.

Property Search in maintenance matters – How would it help?

What may be useful, is to do a property search on the father. Here you would find out what property that person owns. For example, the father may rent a house, but own a house in a different province where he obtains rent. That house he could have inherited.

Other tips and tricks in child maintenance matters – Is there more?

Each case is different. What would work in one maintenance matter, won’t work in another. For example, if someone is self-employed, and only get paid with cash, the dynamics are different. There won’t be any bank statements or payslips. In such a case, you need to be creative. Maybe ask questions to clients of the father and find out what he does and charges. If you can obtain the names of people the father does business with; that would be very useful. You may provide that information to the maintenance court and the investigator could follow up on it. If the father sees that you are getting somewhere, he may decide to pay a fair amount.

The final step – The formal enquiry before a Magistrate

Should the parties not be able to come to an agreement regarding the amount of child maintenance to be paid at the enquiry before the maintenance officer; the matter would have to go before the maintenance magistrate for a formal enquiry. Here the court has to properly consider the means and needs of the mother, the means and needs of the father, and the needs of the minor child. Thereafter, make a maintenance award. There is a legal obligation upon the maintenance officer and the magistrate to conduct a thorough enquiry. The court should not play the role of an umpire. Therefore, a passive attitude should not be taken by a judicial officer in a maintenance enquiry and then give judgment. Should all go well, at the end of the enquiry, a maintenance award would be made.

How does the maintenance court make a decision?

Now, this is where it becomes challenging. The maintenance court can only make an order against a parent if there is evidence that he or she can afford the maintenance claimed, and obviously, the amount claimed is fair. The problem in practice is, the mother alleges that the father can afford the child maintenance, but she has no concrete evidence to back it up. The father is also not forthcoming, and only shows evidence that he cannot afford the amount claimed. The mother knows that he can afford the required amount due to his standard of living and what she experienced while they lived together. Your maintenance case is largely dependent on you proving that your child needs the requested amount. If you do not have proof, or cannot prove it, even if you show that the father can afford it, the court won’t order him to pay it. The court would only order him to pay what is fair and proved. Therefore, always ensure that you keep proof of your income and expenses up to date and ready to provide it to court.

The parent is unhappy with the maintenance court’s decision – Can I appeal it?

If a parent is not happy with the order the court made, then he or she may appeal the Maintenance Order. What this means, is that a higher court would decide whether the maintenance court made the correct decision. In this case, the higher court would be the High Court. If the maintenance matter was heard in Cape Town, it would then be the Western Cape High Court. As you would see below, the procedure is cumbersome. The entire court record would have to be typed out and read by the High Court Judges. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws

Posted on 11 February 2025 by Telelaw

Child Maintenance Applications, investigation, preparation and enquiries – What you need to know, and more.

Everything you need to know when making a maintenance application at the maintenance court. This includes the filing of the complaint, up until the formal enquiry before a magistrate.

Child Maintenance and Applications – How does it work?

However, other factors also play a role. They include the necessary expenses of each parent, which determines how much they should contribute, as well as what assets the parents own. For example, if a father earns R 200 a month, and the mother R R600 – 00, the father would pay the majority of the minor child’s expenses if he owns other assets worth R 100 000 – 00 and the mother none.

If a parent is not happy with the maintenance he or she is receiving, an application may then be made to the maintenance court for a maintenance order.

Child maintenance procedure in the maintenance court

The procedures to be followed in instituting a complaint for child maintenance is regulated by the Maintenance Act 99 of 1998. Let us first unpack the basics.

From whom may maintenance be claimed?

The best interests of the minor child’s principle

Parental Maintenance Obligations

According to section 15(2) of the Maintenance Act, the duty “extends to such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.”

Furthermore, the duty is not discharged where one parent earns substantially more than the other.

According to section 15(3) of the Maintenance Act, in determining the maintenance amount, the maintenance court must take into consideration the following:

“(i) that the duty of supporting a child is an obligation which the parents have incurred jointly;

(ii) that the parents’ respective shares of such obligation are apportioned between them according to their respective means; and

(iii) that the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.

(b) Any amount so determined shall be such amount as the maintenance court may consider fair in all the circumstances of the case.”

Lastly, there is an onus on both the maintenance officer and the maintenance magistrate in placing evidence before the court in determining a fair maintenance amount. This is our starting point going forward.

What is first looked at in a child maintenance matter? Income and Expenses?

Compile and gather all your proof of expenses for you and your child

Details of the parent you are claiming child maintenance from

What do I do at the Maintenance Court?

Go to the Maintenance Court closes to your area and obtain an “Application for Maintenance Order Form” also referred to as “Form A”.

Use the information you have gathered in Step 1 and fill in the form. The form is in the form of an affidavit and you, therefore, have to swear to the correctness of the information under oath and sign. Therefore, do not hide any information for the Court.

Caution: If your information is not 100 % correct, you may be cross-examined on such correctness in Court and if it is found that you were not honest, this would not be in your favour. If you require any assistance in filling in the form, the maintenance officers would be happy to assist you. Once you have filled in the Application for Maintenance Order Form, return it to the maintenance officer who will process it for you. If the maintenance officer can provide you with a reference/case number there and then, request it.

The Maintenance Court will send you and the person you are claiming maintenance from a letter or subpoena to appear at the Maintenance Court for an inquiry with the maintenance officer. Diarise the date immediately and make arrangements with your work and a babysitter as soon as possible. If you miss the date, it can take months to get another.

Processing the Maintenance Application

Therefore, for example, should the maintenance clerk not have the living or work address of the father, then he or she must enlist the assistance of the maintenance investigator to obtain it. For that, he or she can make use of the search and tracking resources the maintenance investigator makes use of and has access to.

What do you do while waiting on the court date?

Getting the non-paying parent to the maintenance court

Therefore, if the next available date for a maintenance enquiry is in three (3) months, the parties can use this time to make arrangements with their work, obtain necessary information for the enquiry, or make alternative school travelling arrangements for the kids. There should therefore not be a delay in notifying the parents of the date of the maintenance enquiry.

Furthermore, when notified of the court date, both parents receive a document stating what information they should bring with to the maintenance enquiry. These include three (3) months bank statements, and salary advice as well as proof of expenses.

You will soon hear from the Maintenance Court where they will be giving you a date to appear back at the Maintenance Court for an inquiry. They would either inform you by post or by a subpoena. On that date, both you and the person from whom maintenance is claimed would have to appear. If you are planning on making use of a legal representative, inform him/her early about the date so that he/she can be available to assist you at Court.

In the notice to appear for the maintenance enquiry, it is asked that you bring proof of all expenses and income for you and your child. This is why it is so very important for you to keep all proof of expenditure in a safe place.

Hint: If you can afford to, bring original proof of expenditure and income and a photocopy thereof. The original you would then be able to take back home and bring it back when requested and the copy will stay in the Court file.

The maintenance enquiry before a maintenance officer

The maintenance officer will speak to each of the parties and look at the documents provided. Each party will get a chance to explain why he/she requires maintenance and also why he/she can’t afford the maintenance requested.

The maintenance officer will as far as possible try to resolve the matter there and then without it having to go to court. If the parties can agree to an amount, this amount can be made an order of the court. If, however, an agreement cannot be reached at this stage, the matter, depending on the Court will either be referred to a prosecutor or for trial.

Remember, if you are a father or a person currently paying maintenance/child support, a reduction is possible. The same goes for an application for an increase in maintenance/child support

Again, the golden standard in which the enquiry should be conducted is that of the child’s best interests. This is of paramount importance.

The maintenance officer should, therefore, ensure that all the financial information about the parties are properly disclosed. This is very important. However, at the same time, the maintenance officer should try to settle the matter, taking into consideration the child’s best interests.

Should the parents not be forthcoming regarding their income and expenses, and the needs of the child, then the maintenance officer must subpoena witnesses if need be and make use of the maintenance investigator which we deal with next.

Denial of paternity – Is it sometimes a delaying tactic?

Once the paternity tests are finalised, the parties would need to return to court again for the results. If the results are positive, in that he is the father, then the enquiry proceeds. If he is not the biological father, the application is removed from the court roll.

The maintenance investigator – Who is it?

Section 7(2)(e) of the Maintenance Act empowers the maintenance investigator after so being instructed by the maintenance officer, to:

“gather information concerning-

(i) the identification or whereabouts of any person who is legally liable to maintain the person mentioned in such complaint or who is allegedly so liable;

(ii) the financial position of any person affected by such liability; or

(iii) any other matter which may be relevant concerning the subject of such complaint; or

(f) gather such information as may be relevant concerning a request referred to in subsection (1) (c).

Now that we looked at the importance of the role of the maintenance officer and maintenance investigator, we move on to the role of the maintenance magistrate. This is where the formal enquiry takes place.

The maintenance investigator at the Court

Insist that the maintenance court instructs the maintenance investigator to investigate the financial affairs of the other parent. This you should even more so insist on if the father does not even provide the court with a copy of his salary slip and outline of expenses.

Summary of Changes brought by the Maintenance Amendment Act (Act No.9 of 2015)

Not too long ago, amendments were made to the Maintenance Act. Below are some of the amendments:

If there was a verbal or written maintenance agreement (which was not made an order of the court), the maintenance court can be approached to substitute or discharge it. [Section 6(c)]
You may lodge a complaint at the maintenance court within the area of jurisdiction of where you reside, carry on business or are employed. [Section 6(2)]
The maintenance court may issue a direction directing one or more electronic communications service providers to furnish the court with the contact information of the person a complaint has been made against to obtain his or her whereabouts. For example, Vodacom, MTN or Cell C can be approached to provide their client’s contact details. [Section 7(3)]
The maintenance court can make an interim maintenance order even if the other party does not agree to it. [Section 10(6)]
The maintenance court can provide your details to credit bureaus if you are in default and civil execution of a maintenance order took place. [Section 26(2A)]
Non-compliance with maintenance orders could have you imprisoned for up to 3 (three) years. [Section 31]

The Evidence – What else can I do to get the best our of my maintenance enquiry?

The father’s employer – Can he be brought to court?

Ask the maintenance court to issue a subpoena against the father’s employer for the salary advice of the father. Also, request details of the father’s pension interest the father may have.

The father’s banking account – Can the court obtain it?

Father’s Credit Profile – Is it possible to obtain it without his consent?

Social media (Facebook, Twitter, Instagram, Pinterest etc.) – Is it of any use?

Many people also make use of LinkedIn accounts. On it, they provide updated employment details. This would be useful to show the court should the father say he is an admin clerk. but on LinkedIn tell the world he is a manager.

Property Search in maintenance matters – How would it help?

Other tips and tricks in child maintenance matters – Is there more?

The final step – The formal enquiry before a Magistrate

Here the court has to properly consider the means and needs of the mother, the means and needs of the father, and the needs of the minor child. Thereafter, make a maintenance award.

There is a legal obligation upon the maintenance officer and the magistrate to conduct a thorough enquiry. The court should not play the role of an umpire.

Therefore, a passive attitude should not be taken by a judicial officer in a maintenance enquiry and then give judgment. Should all go well, at the end of the enquiry, a maintenance award would be made.

How does the maintenance court make a decision?

Your maintenance case is largely dependent on you proving that your child needs the requested amount. If you do not have proof, or cannot prove it, even if you show that the father can afford it, the court won’t order him to pay it. The court would only order him to pay what is fair and proved. Therefore, always ensure that you keep proof of your income and expenses up to date and ready to provide it to court.

The parent is unhappy with the maintenance court’s decision – Can I appeal it?

We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well.

Should you require business advice or services, feel free to click on these links:

Business SA | Private Legal | Envirolaws

Relocation with my minor child to Mexico, Cancún (Consent and Refusal) – Advocate Muhammad Abduroaf
The world is becoming a much smaller place, and technology plays a huge role. People are moving across the world for employment, love and happiness, something that was not the norm a few decades ago. There is no reason why you should remain in South Africa if you can find a better life for yourself and your family overseas. Moving overseas may provide you with the quality of life you want or the possibility of experiencing things you always wanted. The same applies to your child or children relocating with you.
Relocation of your minor child to Cancún, Mexico
If you are single and do not have any minor children, then moving around the world would not be too complicated. All you need to do is ensure that you have the necessary travel documentation and travel ticket (and spending money), and off you go. However, if you want to travel with your minor children (for example, ages three or four) or relocate to another country, things may not be that simple. Firstly, if there is another parent, and he or she has parental responsibilities and rights, then his or her consent is required. For example, let us say you live in Paarl or Musina, South Africa, and you want to relocate to Cancún, Mexico, you would require the other parent’s consent to leave South Africa with your minor child. This can cause challenges, especially if the staying parent (in South Africa) does not agree to the relocation.
What about Passport Consent to travel or relocate to Cancún, Mexico?
The same applies when it comes to your minor child applying for a South African passport to relocate to Mexico, or any country. Both parents who have parental responsibilities and rights of guardianship will have to consent to the minor child’s passport application as well. In this regard, both parents have to be at the Department of Home Affairs (or the relevant bank that also assists with passport application) when making the Application with the minor child. This can be challenging if you have a disinterested parent who does not want to cooperate with the passport application. As you will see later, legal action would need to be taken.
What are the steps to follow when I want to relocate to Cancún, Mexico with my minor child? There is there another parent.
To simplify the process for relocation, the first step would be to receive the other parent’s consent in principle for the relocation and that he or she will co-operate in this regard. Once that has been resolved, the parent relocating would need to make the appointment for the minor child’s passport application as well as the application for the relevant VISA. Each country has different requirements; however, seeing that it is a relocation, you need to apply for the correct VISA. For that, you need the Passport. Once the visa and travel arrangements have been finalised, the parent remaining behind will sign a parental consent letter for the international travel. That letter can be found on the Department of Home Affairs website. Basically, the parent remaining behind would state that he or she gives consent for the minor child to leave the Republic of South Africa and travel and/or relocate to Cancún, Mexico.
What can I do if the other parent does not want to consent to the minor child’s relocation to Cancún, Mexico?
If the parent remaining in South Africa does not want to consent to the minor child’s passport application and/or his or her relocation to Cancún, Mexico, then you would need to approach the Court. The Court, as upper guardian of the minor child, may order that the parent’s consent for the passport application and relocation be dispensed with. What this entails is submitting Court documents explaining why you want to relocate to Cancún, Mexico. The other parent would also have an opportunity to give reasons why he or she objects. At the end of the process, the Court would determine what is in the minor child’s best interests. If it is in the minor child’s best interests to relocate to Cancún, Mexico, the Court would make it possible despite the issue of consent or refusal.
What is the first step I should take if the other parent does not want to consent to the minor child’s passport application and/or relocation to Cancún, Mexico?
If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Cancún, Mexico – in that case, we suggest you approach an attorney or advocate (trust account) to assist you with the legal process. He or she would then contact the other parent explaining the reasons for the relocation and request the necessary consent. If the parent remaining in South Africa does still not agree to the passport application and/or to the relocation to Cancún, Mexico, then the attorney or advocate will proceed to take the matter to court. The legal route can be expensive. However, it is necessary to make the relocation of the minor child possible. You may also attend to the legal process yourself.
Getting legal assistance or help with your relocation application to Cancún, Mexico
If you require legal assistance or representation with relocating to Cancún, Mexico due to the other parent not cooperating or providing consent, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.

Posted on 11 February 2025 by Telelaw

Passport Applications for minor children: What you need to know – Department of Home Affairs – Questions and Answers
Should you require any advice on an application for a passport of a minor, where the co-parent refuses to consent or co-operate; feel free to set up a consultation with us. You may call 0211110090 or click here to do it online.
Leaving South Africa, and visiting another country is something many people do on a daily basis. The reason, therefore, could either be for a holiday, business, a death in the family, and so on. Or it might be to relocate to another country to start a new life, either alone, or with your spouse or children. Whatever the reason is, you require a passport when leaving South Africa. For an adult, all you need to do is visit your nearest Department of Home Affairs Offices, with proof of identity, and the prescribed fees, and take your picture, fingerprints, etc. However, if you are a minor child, under the age of 18, it is not that simple. You would need to go with both your parents, and they need to provide their consent.

Parental Consent and Co-operation for a Passport Application of a Minor child

According to Section 18 (3) of the Children’s Act, both parent’s consent is required for a minor’s application for a passport. This is why we refer to consent and co-operation. Co-operation in the sense of going with to the Department of Home Affairs and giving the consent. Now, this can cause a problem should a parent not agree to the application for a passport. Therefore, one of two things could happen in practice should there be children involved. Either the parent would have to go overseas without the children, or not at all. Before we deal with such a scenario in detail, a bit later, let’s look at the law in a bit more detail.

A child’s Constitutional right to a Passport

Our Constitution, Act 108 of 1996 is the supreme law of the Country. All laws and practices should be in line with it. Therefore, it’s always a good idea to find out what it says. Section 21(4) of our Constitution states the following: “Every citizen has the right to a passport.” This is a fundamental right. The question would then be asked, if that is a fundamental right, why would you still require both parents’ consent as stated in the Children’s Act? A possible reason for the writers of the Children’s Act to state that you require both parents’ consent is to ensure that there is no undue removal of children from the Country. Both parents should, therefore, consent to the passport, which is a key to leaving South Africa.

What if a parent refuses to consent and cooperate for the application of a passport for a minor child?

Notwithstanding what section 18(3) of the Children’s Act states, section 18(5) of the same Act says that a Court can order otherwise. What this means is that if a parent does not want to consent for the Application of a passport, then the Court can Order that his or her consent is not required or dispensed with. For this, you would have to file an Application at the High Court and ask for such an Order. The powers the High Court would exercise is that of the upper guardian of all minor children within its jurisdiction. So, there it is, if consent is refused, you can approach a lawyer, who would make the necessary Application to the appropriate Court. Such an application can be expensive, especially if it is opposed. Therefore, it is best that it is avoided, by resolving issues with the other parent beforehand. But if the other parent is unreasonable, approach the Court.

What does the Department of Home Affairs say?

The following are extracts from the Department of Home Affairs’ Website: “You must also note that:

All documents required for passport applications should be completed in black ink
Husband, wife and children must all complete separate application forms. Both parents and the children concerned must be present when applying for passports for children. See exceptions under Tourist Passports: persons under 16
Passports are issued in accordance with your names as they appear in the National Population Register (NPR) at the time of your application. Any changes to your names must be applied for, finalised and recorded in the NPR before you submit your passport application”

…

“Applying for Tourist Passports: Persons under 16 years

These passports are issued to SA citizens who are 15 years or younger. The passports are valid for 5 years and are not renewable. Once the validity period of a passport expires you will have to submit a new application for a passport. To apply for the passport you must submit the following documents:

A duly completed passport application Form DHA-73

- If the parents are married, the passport application form must be signed by both parents and the child and both parents should be in attendance when the application is submitted.
- Please note that the child and both parents should be in attendance when the application is submitted to the nearest Home Affairs office or SA Mission/Consulate. If a parent cannot be in attendance, a letter of consent and copy of ID will no longer be accepted.
- If divorced and sole parental rights and responsibilities in regard to guardianship have not been granted to one parent, the child and both parents should be in attendance when the application is submitted and both must sign the application form.
- If a parent is deceased, his or her death certificate and a copy thereof must accompany the application for the passport
- In the case of minors born out of wedlock, the biological father ’s consent will also be required if any of the circumstances as outlined in section 21 of the Children’s Act, 1995, are applicable, the child and both parents should be in attendance when the application is submitted.
- If the applicant is in the care of a guardian other than the parents, proof of the High Court’s appointment must accompany the application.
- If a parent cannot be located or refuses to consent, or a dispute concerning consent arises, the matter should be referred to the Children’s Court. The Court’s decision must be submitted with the application for the passport.

The child’s South African birth certificate and a copy thereof
Two colour passport photographs that comply with the Passport and ID Photograph Specifications (NOT needed at smartcard offices as ID images are captured digitally)
Payment of the prescribed passport fee”

In summary, on minor children application for a passport

Before moving onto question and answers on passport applications for minor children below. this article can be summarised as follows:

Every child has a right to a Passport;
Both parents must visit the Department of Home Affairs when applying for the minor child’s passport. The process is outlined above; and
If a parent refuses and does not want to co-operate for the passport application, then the High Court may be approached to dispense with that requirement.

Popular relocation countries for South Africans

If you wish to emigrate from South Africa, there are many places in this world to consider. Some would be more ideal than others. But it all depends on the reason for the relocation. Here is a list of the top countries South Africans and emigrating to:

United Kingdom (UK)
Australia
United States of America (USA)
New Zealand
Canada
Angola
Botswana
Chile
Zimbabwe
Germany
Netherlands
Swaziland
Israel
Portugal
Mozambique
Ireland
Malawi
Switzerland
Namibia
Greece

What follows are questions and answers regarding Applications for Passports for Adults and Children

If you still have questions after reading the article above, and the questions and answers below, feel free to leave a comment hereunder.

Can I get my child a passport without the father’s permission?

If the father is a guardian of the child, his consent is required. That is according to the Children’s Act.

Do you need both parents to get a passport for a child?

Yes. As the law currently stands, you need both parent’s consent.

Can a child get a passport with one parent?

No, you need both parents present when applying for a passport for a minor child.

What documents are needed to renew South African passports?

Visit the Department of Home Affairs Website. Here is the link.

Do both parents need to be present for a child to get a passport?

Yes, they do. Unless only one parent is a guardian.

What documents required for minor’s passport?

Visit the Department of Home Affairs Website. Here is the link.

Do both parents need to be present to get a passport for a child?

Yes, they do. That is the law.

Do you need both parents to get a passport for a 17-year-old?

As you are still a minor at the age of 17, you require both your parents to consent to your passport application. Bot parents should also be at the Department of Home Affairs when making the Application.

Can the noncustodial parent get a passport for the child?

Yes, if the parent is a guardian as well. If there is another parent too, both parents must give consent at the Department of Home Affairs.

How do you get full custody of your child?

You would have to approach the Court for such an Order. The Court would have to determine whether it is in the child’s best interests. We advise you speak to a lawyer.

Do you need both parents to get a passport for a 16-year-old?

As you are still a minor at the age of 16, you require both your parents to consent to your passport application. Both parents should also be at the Department of Home Affairs when making the Application.