Constitutional Court of the Republic of South Africa Contact details – Adv. Abduroaf

Posted on 11 February 2025 by Telelaw

[caption id="attachment_10806" align="alignnone" width="707"] Relocation consent for minor child to the Netherlands – Advocate Muhammad Abduroaf[/caption]
I want to relocate from South Africa to the Netherlands with my minor child. The other parent does not want my child to relocate to the Netherlands. What can I do?
The Netherlands is a popular destination to emigrate to. People emigrate from South Africa for many reasons. It ranges from better employment opportunities, family relations, or for a better standard of living. Whatever the reason a parent wants to relocate to the Netherlands, if a minor child will be joining that parent and also relocating to the Netherlands, then the parent remaining in South Africa’s consent would usually be required. Let us unpack the legal issues a parent may encounter when wanting to emigrate to the Netherlands. Before we do so, let us list the various cities and towns in the Netherlands to which you may want to relocate:
Drenthe (province), Meppel, Flevoland (province), Lelystad, Friesland (province), Leeuwarden, Sneek, Gelderland (province), Nijmegen, Renkum, Rheden, Tiel, Zutphen, Groningen (province), Groningen, Limburg (province), Kerkrade, Maastricht, Roermond, Sittard, Tegelen, Venlo, Noord-Brabant (province), Oss, Roosendaal, ’s-Hertogenbosch, Tilburg, Noord-Holland (province), the Netherlands, Den Helder, Marken, Velsen, Volendam, Zaanstad, Overijssel (province), Kampen, Zwolle, Utrecht (province), Soest, Utrecht, Zeist, Zeeland (province), Middelburg, Vlissingen, Zuid-Holland (province), The Hague, Scheveningen, Katwijk, Leiden, Lisse, Rijswijk, Rotterdam, Schiedam, Vlaardingen, Zoetermeer, Caribbean Netherlands (special municipalities), Bonaire (special municipality), Saba (special municipality), Sint Eustatius (special municipality), Aruba (unitary state), Oranjestad, San Nicolas, Curaçao (unitary state), Willemstad, Sint Maarten (unitary state)
(https://www.britannica.com/topic/list-of-cities-and-towns-in-the-Netherlands-2055398)
Why do I require the other parent’s Consent to relocate to the Netherlands?
According to South African law, if you are a co-holder of parental responsibilities and rights over your minor child, you must consent to your child leaving South Africa. In this case, relocating to the Netherlands. Here we refer to section 18 of the Children’s Act 38 of 2005. The entire provision is as follows:
18 Parental responsibilities and rights
(1) A person may have either full or specific parental responsibilities and rights in respect of a child.
(2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right-
(a) to care for the child;
(b) to maintain contact with the child;
(c) to act as guardian of the child; and
(d) to contribute to the maintenance of the child.
(3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must-
(a) administer and safeguard the child’s property and property interests;
(b) assist or represent the child in administrative, contractual and other legal matters; or
(c) give or refuse any consent required by law in respect of the child, including-
(i) consent to the child’s marriage;
(ii) consent to the child’s adoption;
(iii) consent to the child’s departure or removal from the Republic;
(iv) consent to the child’s application for a passport; and
(v) consent to the alienation or encumbrance of any immovable property of the child.
(4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the Consent of the other any right or responsibility arising from such guardianship.
(5) Unless a competent court orders otherwise, the Consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c).
Now let us explain what Parental Responsibilities and Rights are.
What are parental Responsibilities and Rights of a parent in relation to a child?
As can be seen from section 18(2) of the Children’s Act, when we refer to Parental Responsibilities and Rights, we refer to the following:
(a) to care for the child;
(b) to maintain contact with the child;
(c) to act as guardian of the child; and
(d) to contribute to the maintenance of the child.
Therefore, if a parent has parental responsibilities and rights over a minor child, and accordingly, rights of guardianship, their Consent is required when it comes to issues of guardianship. As seen from section 18(3)(c) of the Children’s Act above, both parents’ Consent is required should a minor child depart from the Republic of South Africa. In this case, to emigrate to the Netherlands. Even if the minor child only wants to go for a short holiday to the Netherlands, both guardians’ Consent would be required.
When would the other parent be seen as a guardian in the case of a relocation matter to the Netherlands?
It must be noted that not all parents are legal guardians over their minor children. We should therefore distinguish between married or divorced parents and parents who were never married. As you would see below, usually married, or divorced parents’ Consent would be required for a minor child to relocate or emigrate to the Netherlands. However, that does not automatically apply to parents who were never married. This could be because the child could have been born from a brief encounter and never met his or her father. It would not make sense that a parent who never met his or her 15-year-old child, should give Consent for relocation to the Netherlands.
Mother’s Consent for relocation of the minor child to the Netherlands
Section 19 of the Children’s Act deals with the Parental responsibilities and rights of mothers. It states the following:
19 Parental responsibilities and rights of mothers
(1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.
(2) If-
(a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and
(b) the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child.
(3) This section does not apply in respect of a child who is the subject of a surrogacy agreement.
As seen from section 19(1) of the Children’s Act, in most cases involving the relocation of a minor child to the Netherlands, the mother’s Consent is required as she has full parental responsibilities and rights over the minor child.
Married father’s Consent for the relocation of the minor child to the Netherlands
Section 20 of the Children’s Act deals with Parental responsibilities and rights of married fathers. It states the following:
20 Parental responsibilities and rights of married fathers
The biological father of a child has full parental responsibilities and rights in respect of the child-
(a) if he is married to the child’s mother; or
(b) if he was married to the child’s mother at (i) the time of the child’s conception; (ii) the time of the child’s birth; or (iii) any time between the child’s conception and birth.
As can be seen from sections 20 (a) and (b) of the Children’s Act, if the father and the mother were married, or are married, then his Consent is required for the minor child to relocate to the Netherlands. Of course, an exception to this would be should a court of law order otherwise. This would be the case should the parents be divorced and the divorce court ordered that only the mother may act as guardian. Next, we deal with the issue of an unmarried father’s Consent to relocate a minor child to the Netherlands.
Consent of unmarried fathers for the relocation of their minor children to the Netherlands.
Section 21 of the Children’s Act deals with parental responsibilities and rights of unmarried fathers. The section states the following:
21 Parental responsibilities and rights of unmarried fathers
(1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child-
(a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
(b) if he, regardless of whether he has lived or is living with the mother-
(i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
(ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
(iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
(2) This section does not affect the duty of a father to contribute towards the maintenance of the child.
(3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.
(b) Any party to the mediation may have the outcome of the mediation reviewed by a
court.
(4) This section applies regardless of whether the child was born before or after the commencement of this Act.
As can be seen from the latter sections, a father of a child born out of wedlock does not automatically have parental responsibilities and rights over his minor child. He may however acquire those parental responsibilities and rights over his minor child if he is materially involved in the child’s life. That would be where the father and the mother were in a permanent life partnership when the child was born or he is meaningfully involved in the child’s life, as outlined above. We shall not go into much detail regarding that. However, in most cases, if the father had regular contact with the child and paid child support, he would have acquired parental responsibilities and rights over the minor child.
What do you do if the other parent does not want to consent to the minor child relocating to the Netherlands?
Suppose the other parent also has parental responsibilities and rights over the minor child, and he or she does not want to consent to the relocation of the minor child to the Netherlands, then in such a case, the Court needs to be approached. Here I refer you back to section 18(5) of the Children’s Act referred to above where it states:
(5) Unless a competent court orders otherwise, the Consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c).
Therefore, after your Court Application has been launched an both sides have been heard, the Court would make the necessary Order. If you are successful in your application for the relocation of your minor children to the Netherlands, then the Court will make an Order similar to that which is shown below. [caption id="attachment_10805" align="alignnone" width="715"] Relocation consent Order for minor child to the Netherlands – Advocate Muhammad Abduroaf[/caption] [caption id="attachment_10806" align="alignnone" width="694"] Relocation consent Order for minor child to the Netherlands – Advocate Muhammad Abduroaf[/caption]

Posted on 11 February 2025 by Telelaw

I am not happy with the Court’s decision. I believe it was unfair. What can I do? Can I take the decision on Appeal to the High Court, Supreme Court of Appeal, or the Constitutional Court?
If you have an issue that can best be resolved through a court of law, then instituting legal proceedings is what you must do. This would apply if someone owed you money, you have a dispute regarding your rights, or you want to have access to your child. If you were a party to a legal matter that was adjudicated in a Court of Law in South Africa, and you are not happy with the outcome, you have a right to appeal the decision. This article deals broadly with the issue of appeal to the High Court, Supreme Court of Appeal, or the Constitutional Court. Please note the appeal process from the Magistrate’s Court to the High Court is different from that of the High Court to the Supreme Court of Appeal and the Constitutional Court. Therefore, only take this article as a guide. Consult with an attorney or advocate should you require more, and specific information relating to your case.
Trial or Application Court Decision:
The legal process typically begins with a trial or application court, where a judge or magistrate makes a decision on a case. This would be the court of first instance.
Notice of Appeal:
If a party is dissatisfied with the decision of the court of first instance, they may file a notice of appeal within a specified time frame, indicating their intention to appeal. This document should be well drafted as the appeal court, court of first instance, and the parties involved would need to know what is the basis for your appeal.
Obtaining the Record of Proceedings:
The appellant (party filing the appeal) must obtain a complete record of the proceedings from the trial court. This record includes the transcripts, evidence, and other relevant documents. Basically, the appeal court would determine whether the court of first instance erred in its judgment based on the information before it.
Preparation of Appeal Documents:
The appellant, through legal representation, prepares the necessary appeal documents, which typically include a notice of appeal, a concise statement of the grounds of appeal, and other relevant documents.
Filing the Appeal:
The appeal documents are filed with the appropriate appellate court, along with the required fees.
Service on the Other Party:
The appellant is usually required to serve a copy of the appeal documents on the other party or parties involved in the case.
Respondent’s Answering Affidavit:
The respondent (the other party) may file an answering affidavit responding to the grounds of appeal.
Heads of Argument:
Both parties submit written arguments (heads of argument) outlining their legal positions to the court before the appeal hearing. This would assist the appeal court when dealing with the case.
Appeal Hearing:
The appellate court conducts a hearing where both parties present their arguments. The court may ask questions, and the parties or their legal representatives may respond.
Judgment:
The appeal court delivers a judgment either immediately after the hearing or at a later date. The judgment may affirm, set aside, or modify the decision of the trial court.
Further Appeals:
In some cases, there may be the possibility of further appeals to higher courts, such as the Supreme Court of Appeal or the Constitutional Court, depending on the nature of the case. It’s crucial to consult with a legal professional or refer to the latest legal resources for the most up-to-date and accurate information on the appeal process in South Africa. Legal procedures can change, and specific details may vary depending on the type of case and the court involved. If you are unhappy with a court decision and require legal assistance regarding a possible appeal, feel free to contact us for assistance.

Posted on 11 February 2025 by Telelaw

Related Post

Do you require a video legal advice consultation?