How to appeal to the Constitutional Court – Advocate Muhammad Abduroaf

A case usually commences from the Magistrate’s or High Court. If a party to the proceedings is unhappy with the outcome of the Magistrate’s Court decision, he or she will then proceed to appeal to the High Court. If, however, a case has been heard in the High Court, the Appeal would either be heard by a full-bench (usually two judges) in the High Court or the Supreme Court of Appeal would hear it. Once the Supreme Court of Appeal heard the matter and made a ruling, that would usually end it. However, a further appeal may be made to the Constitutional Court if the matter relates to constitutional rights. This Article deals with appeals to the Constitutional Court of South Africa, which has its seat in Braamfontein. Please note that although this article does not deal with it, it is also possible to make a direct application to the Constitutional Court, asking it to sit as a court of first and last instance because of the urgency of the matter or when allowed in terms of the Constitution as can be seen below. According to the website of the Constitutional Court, the contact details of the Constitutional Court is: Court Offices Director of the Constitutional Court: Tel: +27 11 359-7459 Email: [email protected] General office: of the Constitutional Court (Registrar ): Tel: +27 11 359-7468 / 7460 / 7465 / 7592 Email: [email protected] 

What is a Court Appeal?

The South African Court System

166. The courts are—

167. (1) The Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges.

How do you appeal to the Constitutional Court?

Rules of the Constitutional Court

Procedure on appeal

20. Procedure on appeal

What are the Steps:

1. Within 15 days of the Order you are appealing against, lodged you Application for leave to appeal [Rule 19(2)]
2. Within 10 days, the Respondent is to file its Notice to Oppose the appeal and the grounds for the opposition [Rule 19(4)(a)]
3. The Constitutional Court would then decide whether or not to grant the leave to Appeal [Rule 19(6)(a)]
4. If leave to appeal is granted, the appellant shall prepare and lodge the appeal record with the Registrar [Rule 20(1)(a)]
5. The Chief Justice may decide whether the appeal shall be dealt with on the basis of written arguments only [Rule 20(5)]
6. The matter would be argued on the date provided by the Constitutional Court.

Child Custody Visitation and Contact

[caption id="attachment_10828" align="alignnone" width="682"] Relocation consent Court Order for minor child to Ireland – Advocate Muhammad Abduroaf[/caption]

I want to relocate from South Africa to Ireland with my minor child. The other parent does not want my child to relocate to Ireland. What can I do?

Ireland 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 Ireland, if a minor child will be joining that parent and also relocating to Ireland, 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 Ireland. Before we do so, let us list the various cities and towns in Ireland to which you may want to relocate: Dublin, Cork, Galway, Limerick, Waterford, Drogheda, Dún Dealgan, Swords, Blackrock, Tralee, Carlow, Ennis, Dunleary, Kilkenny, Naas, Sligo, Monaghan, Ros Comáin, Mullingar, Tallaght, Wicklow, Clonmel, Wexford, Longford, Trim, Carrick on Shannon, Tullamore, Nenagh, An Cabhán, Port Laoise, Castlebar, Lifford. (https://simplemaps.com/data/ie-cities)  

Why do I require the other parent’s Consent to relocate to Ireland?

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 Ireland. 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 Ireland. Even if the minor child only wants to go for a short holiday to Ireland, both guardians’ Consent would be required.

When would the other parent be seen as a guardian in the case of a relocation matter to Ireland?

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 Ireland. 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 Ireland.

Mother’s Consent for relocation of the minor child to Ireland

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 Ireland, 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 Ireland

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 Ireland. 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 Ireland.

Consent of unmarried fathers for the relocation of their minor children to Ireland.

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 Ireland?

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 Ireland, 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 Ireland, then the Court will make an Order similar to that which is shown below. [caption id="attachment_10827" align="alignnone" width="644"] Relocation consent Court Order for minor child to Ireland – Advocate Muhammad Abduroaf[/caption] [caption id="attachment_10828" align="alignnone" width="686"] Relocation consent Court Order for minor child to Ireland – Advocate Muhammad Abduroaf[/caption]