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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

REPUBLIC OF SOUTH AFRICA

 

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NO: 19219/22

 

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED: NO

Date: 3 May 2022

 

In the matter between:

 

M E K[....]                                                                                FIRST APPLICANT

 

M[....] K[....]                                                                             SECOND APPLICANT

 

and

 

PROVINCIAL HEAD OF THE DEPARTMENT

OF SOCIAL DEVELOPMENT                                                FIRST RESPONDENT

 

L[....] S[....]                                                                              SECOND RESPONDENT

 

A[....]2 S[....]2 S[....]3                                                               THIRD RESPONDENT

 

THE DEPARTMENT OF HOME AFFAIRS                              FOURTH RESPONDENT

 

JUDGMENT

 

Van der Schyff J

 

[1]          The applicants are foster parents of the minor child, which will be referred to in this judgment as 'A'. The minor child was placed in the first applicant's foster care on 20 October 2019 in an order granted by the children's court for the district of Govan Mbeki. This order was extended on 18 March 2022 to 21 March 2024 and also now includes the second applicant as a foster parent. The minor is currently five years and one month old.

 

[2]          The facts underpinning this application are that the applicants were invited to accompany their children on a family vacation to Ponta Do Ouro, Mozambique, during June 2022. In January 2022, the applicants approached the second and third respondents through a social worker to obtain their consent to apply for a passport for A to travel with them to Mozambique in June 2022. The vacation booking is made from 10 June 2022 to 20 June 2022. The applicants were informed on 15 February 2022 that the second and third respondents refused consent. The social worker was requested to proceed with an application in terms of section 169 of the Children's Act 38 of 2005 (the CA, or Children's Act) to the Head of the Department of Social Development (the HOD) on 24 February 2022. This application was submitted on 22 March 2022. The applicants were informed on 25 March 2022 that the HOD refused consent because the biological parents did not consent to A traveling to Mozambique.

 

[3]          The applicants also relate that they approached Tutela's Offices in Secunda already in 2019 and 2020 with a request to obtain permission to travel to Mozambique. The biological parents refused, and Tutela could not assist. Then, however, the Covid pandemic hit.

 

[4]          The current application was issued on 31 March 2022. The respondents are called upon in terms of Rule 53 of the Uniform Rules of Court to show cause why the decision of the HOD should not be reviewed and set aside. The applicants also seek that the fourth respondent be ordered to issue a passport for A and for permission to allow the applicants to leave the Republic for holiday purposes with the minor child. The respondents were provided with 5 days to file their notices of intention to defend, and an additional 8 days to file their answering affidavits if they opposed the application. The first respondent is the only party that filed a notice of intention to defend and an answering affidavit. The fourth respondent filed a notice to abide.

 

[5]          The applicants list the following grounds for review:

i.Section 6(2)(a)(iii) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA): The administrator who took the decision was biased or can reasonably be suspected of bias in that the registrar only took into consideration the fact that the second and third respondents (the biological parents) refused consent, a decision that they conveyed in a handwritten note. No regard was given to the constitutional right of the other parties or the best interests of the minor child;

ii.Section 6(2)(b) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA): A mandatory and material procedure or condition prescribed by an empowering provision was not complied with in that ss 6(2)(a-f), 6(4)(a-b), 7 and 9 of the CA were not sufficiently considered;

iii.Section 6(2)(e)(iii) of PAJA: Relevant considerations were not considered, amongst others, the interests of A to join a family vacation with the applicants and their children and grandchildren.

 

[6]          The first respondent (the respondent) opposes the application. In the answering affidavit, the respondent submits that the biological parents retain their rights to their child even if the child is in foster care. The respondent avers that the urgency, if any, is self-created because the applicants knew already in 2019 that the biological parents refused to consent to the minor's removal from the Republic.

 

[7]          The respondent submits that the issues before the court are centred around the questions as to whether foster parents have a right to remove a child from the Republic without the consent of the biological parents. The respondent confirms that it denied the application in terms of s 169 based on the biological parents' refusal to grant consent.

 

[8]          The respondent submits that the court is expected to decide between the versions of the biological parents and the applicants without hearing oral evidence. According to the respondent, these versions constitute a clear dispute of fact and render the court incapable of adjudicating the application, save to dismiss it on the basis that such dispute was foreseen. In reply, the applicants deny that a factual dispute arose because A's biological parents filed no opposing papers.

 

Preliminary issues

 

[9]          Two preliminary issues need to be dealt with before the application can be considered on the merits. These are the issues of urgency, and the alleged factual dispute that exists. If the timeline is considered, I am of the view that the applicants made out a case for approaching the court on an urgent basis. Although they intended to travel to Mozambique as early as 2019, the intended travel did not realise during that period. Their foster care was only extended in March 2022, and the applicants commenced in advance to obtain the parent's permission again. The child is older now, and it is not unreasonable to have suspected that the biological parents' view in this regard might have changed. The applicants did not drag their feet in this regard.

 

[10]       As for the alleged factual dispute, the only papers before the court are the founding affidavit and the answering affidavit filed by the first respondent. The first respondent admitted to having based its decision on the biological parents' written note wherein they set out the reasons for not granting their permission to the applicants' request. Although the application was served personally on A's biological parents, neither opposes the application. There is no factual dispute before the court. The question is whether this court must review and set aside the first respondent's decision to refuse to grant the applicants the consent they seek.

 

[11]       Despite no opposing papers having been filed by A's biological parents, the second and third respondents, it is apposite to have regard to the reasons they provided when refusing consent since their refusal is cited as the sole reason the first respondent has refused consent. The biological parents state that:

 

i.Mozambique is a high malaria area;

ii.Children of 5 years or younger are not recommended to receive malaria medication and are also not advised to travel to any malaria areas as they are more vulnerable to getting malaria;

iii.Malaria can be fatal if not treated and can cause health problems later in life;

iv.Mozambique does not have adequate health care facilities, and if A gets malaria, he will not be able to obtain the health care needed;

v. The applicants are not young enough to be able to react promptly or fast enough should anyone kidnap A;

vi.Car accidents can occur when long distances are driven;

vii.The crime rate in Mozambique is very high;

viii.A is not replaceable;

ix.The prevalence of Covid-19 is very high in Mozambique, and traveling to Mozambique is not recommended.

 

Legal Framework

 

[12]       This application is to be considered in the framework constituted by the interaction of section 28 of the Constitution and the Children's Act. As the upper guardian of minors, this court is empowered and obliged to deal with this application.

 

[13]       It is trite that section 28(2) of the Constitution prescribes that a child's best interests are of paramount importance in every matter concerning that child. Section 2 of the Children's Act reiterates the importance of the child's best interest. In s 9, the principle is again emphasised to apply 'in all matters concerning the care, protection, and well-being of a child.' The paramountcy of the best interest principle is firmly entrenched in South African law.

 

[14]       The objects of the Children's Act include giving effect to the child's constitutional right to family care or parental care or appropriate alternative care when a child is removed from the family environment. The rights and responsibilities provided throughout the Children's Act must be viewed from the perspective that these rights and responsibilities are provided for to ensure the realisation of the child's constitutional rights. This is why s 6(1), amongst others, prescribes that all proceedings, actions, or decisions in a matter concerning a child must:

 

'(a) respect, protect, promote and fulfil the child's rights set out in the Bill of Rights, the best interests of the child standard set out in section 7 and the rights and principles set out in this Act, subject to any lawful limitation;

(b) respect the child's inherent dignity;

(c) treat the child fairly and equally'.

 

Section 7 sets out the factors that must be considered whenever a provision of the Children's Act requires the best interests of the child standard to be applied. Section 8 of the Act obliges and confers a positive duty on all organs of state in all spheres of government and all officials, employees, and representatives of an organ of state to protect, respect, and promote the rights of children contained in the Children's Act.

 

[15]       Chapter 3 of the Children's Act deals with parental rights and responsibilities. Of particular importance for this application are s 18(3)(c)(iii) and s 18(5). Section 18(3)(c)(iii) provides that subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must give or refuse consent required by law in respect of the child, including consent to the child's departure or removal from the Republic. Section 18(5) expressly requires the consent of all guardians of the child to depart or be removed from the Republic, but empowers the court to make an order dispensing with joint consent.

 

[16]       Chapter 7 of the Children's Act contains the heading "Protection of children". Sloth-Nielsen[1] alludes to the fact that Part 1 of this chapter of the Act links closely to other parts of the Act, and can be seen as the foundation of the existence of the child protection system. She states:

 

'Hence, Part 1 of chapter 7 can properly be seen as Constitution both the overarching framework for, and the entry point into, the comprehensive child protection system. Further to this, though, regard may need to be had to specific chapters dealing with children who might be subjects of the child protection system, such as chapter 18 (Trafficking with children), chapter 11 (Alternative care) and chapter 12 (Foster care), as well as child and youth care centres as provided for in chapter 13.'

 

[17]       The importance of this perspective is that it highlights the fact that the different chapters and provisions of the Children's Act remain intrinsically interlinked. It will be wrong to regard sections from different chapters of the Act without considering them within the broad context of the Act against the constitutional imperative contained in s 28 of the Constitution. The interaction between s 139, located in chapter 7, with s 169 in chapter 12, and s 18(3)(c)(iii) and 18(5) in chapter 3 are of specific importance for this application. Section 139(1) provides as follows:

 

'No person may take or send a child out of the Republic-

(a)       In contravention of a court order prohibiting the removal of the child from the Republic, or

(b)       Without consent-

(i)         Obtained in terms of section 18(5) from parents holding relevant parental responsibilities and rights in respect of that child;

(ii)        Obtained in terms of section 169 with regard to a child in alternative care; or

(iii)       of a court.'

 

[18]       Sloth-Nielsen[2] explains that s 139(1) is the approximate equivalent of s 52 of the Child Care Act 74 of 1983 (Child Care Act), which prohibited the removal of a foster child from the Republic without the permission of the Minister. She states that s 52 of the now-repealed Child Care Act gave rise to considerable practical problems facing foster parents wishing to remove their children for holiday purposes, for instance, to a neighbouring territory in Southern Africa, because they could not do so without a lengthy process of obtaining ministerial permission.

 

[19]       Section 139 proceeds well beyond protecting children in the alternative care system from being transported across national boundaries. Sloth-Nielsen points out that s 139(1) is not clearly drafted, a point alluded to by counsel representing the first respondent. Counsel for the first respondent submitted that when a decision pertains to a child in foster care's removal from the Republic, it is unclear whether the consent of a foster child's biological parents is required in addition to the consent of the provincial head of social development as prescribed in s 169 of the Children's Act, and when the court's consent is needed.

 

[20]       Chapter 11 of the Children's Act provides alternative care to children. Zaal and Matthias[3] explain that state-imposed care measures can be divided into two broad categories: (i) interventions that occur while a child remains with its caregiver, and (ii) interventions that result in a child being removed to a new caregiver. This second category is referred to as an alternative care placement. Section 167 of the Children's Act stipulates that a child is in alternative care if the child has been placed, inter alia, in foster care. As alluded to above, s 169 provides that a child in alternative care may not leave the Republic without the written approval of the provincial head of social development first being obtained. Section 169(2) provides that in granting approval in terms of subsection (1), the provincial head of social development may determine terms and conditions to protect the best interests of the child in alternative care. Section 169(2) erases any doubt that might exist as to whether the decision-maker, the provincial head of social development, needs to consider the best interests of a child when exercising the discretion provided in s 169. When children are in alternative care, the state is responsible for their well-being. The provincial head of social development is not to regard the responsibility created in s 169 as a mere confirmation of a child in alternative care's biological parents' wishes by rubberstamping their expressed views. The discretion is to be exercised taking into consideration the best interests of the minor child.

 

[21]       An important facet of s 169 was highlighted by the first respondent's counsel. He submitted that it should be noted that, it is the provincial head and not the court who decides to permit departure to another country. The authority to allow a child to be removed from the Republic lies with the state, represented by the provincial head of social development, as the state is ultimately responsible for the well-being of children in alternative care. The children's court authorising the foster care could not order the removal of a child from the Republic unless consent were obtained in terms of s 169. Where a party is aggrieved by a refusal to allow a child to depart from the Republic, the powers accorded under s 177 must be utilised. The provincial head's decision can be appealed against in the prescribed form, within 90 days with the MEC for social development, who must decide on the appeal within 90 days of receipt thereof. Where a person is not satisfied with the outcome of an appeal lodged, the person may apply to the competent division of the High Court to review that decision.

 

[22]       It is apposite at this juncture to summarise the interrelation of ss 18(5), 139(1), 169, and s 177 regarding the removal of a child in foster care from the Republic. For a child in foster care to be removed from the country section 18(5) requires that permission must be obtained from such child's guardians unless otherwise ordered by a competent court. Section 169 prescribes that the provincial head of social development must provide written approval for the removal of the child from the Republic. Where refusal is withheld, the appeal and subsequent review processes provided for in s 177 may be utilised. S 139(1) is a protective measure incorporated in the Children's Act. Section 139(1)(c) merely states, as a matter of law, that no person may remove a child from the Republic without having obtained the consent in terms of section 18(5) or s 169 or of a court. It is not an empowering provision.

 

The review

 

[23]       It is common cause that the applicants did not appeal the refusal to grant consent for the child's removal from the Republic to the MEC for social development. Although the applicants state in the founding affidavit that all internal remedies have been exhausted, it is evident that they are wrong. The applicants did not ask this court to condone the said failure, evidently because they were under the impression, albeit erroneously, that the internal remedies were exhausted. However, the first respondent did not, in the answering affidavit or its heads of argument, take any issue with the fact that the internal remedy provided for in s 177(1) of the Children's Act was not exhausted. It was only when addressing the court that counsel for the first respondent submitted that the application had to be brought in terms of PAJA.

 

[24]       It is trite that a court may in exceptional circumstances and on application by the person concerned, exempt such person from the obligation to exhaust any internal remedy if the court deems it in the interest of justice. In MEC for Local Government, Environmental Affairs and Development Planning, Western Cape and Another v Hans Ulrich Plotz NO and Another[4] (Plotz), the Supreme Court of Appeal reiterated that it is compulsory for the aggrieved party in all cases to exhaust the relevant internal remedies before approaching a court for review, unless exempted from doing so by way of a successful application under s 7(2)(c) PAJA. The court explained that s 7(2)(c) of PAJA postulates an application to the court by the aggrieved party for exemption from the obligation to exhaust any internal remedy. In Plotz, the Trust did not apply for exemption from the obligation to exhaust, and the court dealt with it mero motu. The Supreme Court of Appeal (SCA) nevertheless proceeded to consider the court a quo's reasons for granting the exemption to the Trust. The SCA did not agree with the court a quo's ruling that exceptional circumstances exist that justify the granting of exemption. The SCA held that the reasons alluded to do not establish exceptional circumstances.

 

[25]       The principle underlying the requirement that internal remedies must be exhausted before courts can be approached to review administrative action is rooted in the doctrine of separation of powers. The position as far as it relates to children, is however, distinguishable from administrative actions that do not relate to children, and even more so when the administrative action in question relates to a decision taken in terms of the Children's Act. It is trite that the High Court is the upper guardian of all minors.[5] In Mpofu v Minister for Justice and Constitutional Development and Others[6] the Constitutional Court endorsed the approach in Kotze v Kotze:[7]

 

'[T]he High Court sits as upper guardian in matters involving the best interests of the child (be it in custody matters or otherwise), and has extremely wide powers in establishing what such best interests are. It is not bound by procedural strictures or by the limitations of the evidence presented, or contentions advanced or not advanced, by respective parties.'

 

[26]       As upper guardian, the High Court can overrule decisions taken by children's natural guardians. The court is only bound by the principle that all decisions taken must advance the best interests of the child concerned. This does not mean that I propose that s 7(2)(c) of PAJA does not find application when an administrative decision in terms of s 169 is taken on review. It merely means that in the particular factual matrix of the application before me, I am of the view that it is in the best interests of the minor A, to consider mero motu whether exceptional reasons exist that justify the granting of exemption to exhaust internal remedies and to consider the review application notwithstanding that no appeal was lodged with the MEC for social development against the refusal to grant consent to remove the minor from the Republic.

 

[27]       The Supreme Court of Appeal explained in Plotz[8] that there is no definition of 'exceptional' circumstances in PAJA and referred to Nichol and Another v Registrar of Pension Funds and Others[9] where the court interpreted exceptional circumstances to mean-

 

'… circumstances that are out of the ordinary and render it inappropriate for the court to require the s7(2)(c) applicant to first pursue the available internal remedies. The circumstances must in other words be such as to require the immediate intervention of the courts rather than to resort to the applicable internal remedy.'

 

[28]       Section 177 prescribes that where an appeal is lodged with the MEC for social development must decide on the appeal within 90 days of receipt thereof. The applicants received an invitation from their children to accompany them on a family vacation on 15 January 2022. On 18 January 2022, they wrote to the social worker to obtain the consent of the minor's biological parents. On 15 February 2022, they were informed of the second and third respondents' refusal to consent. The applicants requested the social worker to proceed with the application in terms of s 169 on 24 February 2022. The children's court granted the order extending the applicants' foster care on 18 March 2022, and on 22 March 2022, the application in terms of s 169 was submitted to the relevant authority. The application could not be dealt with in terms of s 169 before the children's court extended the applicant's foster care. Where a court must extend an existing order, parties cannot be expected to assume that the order will be extended. The establishment and continued existence of responsibilities of foster parents are intrinsically linked to the existence of a valid court order. The applicants were advised of the first respondent's refusal on 25 March 2022. Even if the appeal were lodged on 25 March 2022, the 90-days provided to the MEC would extend beyond the proposed departure date, and it would not leave sufficient time for the applicants to apply for a passport for the minor if the MEC upheld the appeal. In these circumstances, strict compliance regarding the exhausting of internal remedies is not required.

 

[29]       The first respondent sets its reasons for not granting the request out in the answering affidavit. The first respondent's refusal was clearly solely informed by the view that neither the Children's Act nor the order granted by the children's court divested the biological parents of the rights prescribed in s 18 of the Children's Act. The first respondent surprisingly states that the Children's Act does not indicate how the rights of foster parents interplay with those of the biological parents but merely provides that the biological parents must give consent for the child to be removed from the Republic. The first respondent failed to consider that s 169 of the Children's Act confers the provincial head of social development with a discretion that exists separate from the child's guardian's decision as to whether a child in foster care may be removed from the Republic. Even where the guardians of a child in foster care, be it the biological parents or court-appointed guardians, grant their consent for the child's removal from the Republic, the provincial head of social development is still required to consider the request and provide written approval. In considering such a request, the biological parents' wishes are but one of the factors that the provincial head must take into consideration. Ultimately the decision to grant or refuse consent to remove the child from the Republic must be informed by the child's best interests. There is no indication in the papers filed of record that the first respondent considered any other factor than the second and third respondents' refusal as contained in the handwritten note. In these circumstances, it is in the child's best interest to set aside the first respondent's decision. Due to the time constraints already alluded to, and since the information that was available to the first respondent when the decision was made is before this court, I am of the view that it is in the child's best interests for this court to consider the relevant information and make the decision.

 

[30]       Although the second and third respondents did not enter the fray, the reasons they proffered for refusing to grant consent are before the court. The reasons relate to the danger of the child contracting malaria, the alleged lack of medical facilities if he does contract malaria, dangers posed by Covid-19 associated with traveling long distances, the applicants' age, and their presumed inability to act timeously if danger, e.g., a kidnapping, arises. Considerations to the contrary are that the child has been in the applicants' care and has been adequately cared for since 2019. There is no indication on the papers that the applicants as foster parents have previously exposed the minor to danger or taken any irresponsible decision contrary to what a reasonable parent would have taken. Malaria is known to be prevalent from December to April, although the necessary precautions must be taken during any visit to areas that are known as malaria areas. This includes areas in the Republic of South Africa's northern regions like Musina or the Kruger National Park. Visitors to these areas are aware that they must take special precautions to ward off mosquitoes. It is evident that this will not be the applicants' first visit to Ponta de Ouro. This is important because they know what conditions they will meet there and are confident that it is in the minor's best interests to accompany them and their children and grandchildren. The applicants would, for argument's sake be allowed to take the minor child without any consent required to Kosi Bay Mouth while consent is refused to take him 57 km further to Ponta De Ouro, in circumstances where the only objections raised are those already alluded to. The foster parents would not require consent to visit malaria areas within the borders of South Africa, and it is nonsensical to refuse consent to visit Ponta De Ouro in June 2022 based on the perceived health dangers posed by such a visit. Long-distance traveling and possible exposure to Covid-19 are likewise not factors unique to a visit to Ponta De Ouro that justify refusing the consent to remove the minor from the Republic. The children's court, on application supported by a social worker, found the applicants to be suitable foster parents despite their age. As for the concern related to a lack of medical facilities, the applicants stated in their founding affidavit that there are ample facilities at Ponta De Ouro.

 

[31]       It would be beneficial for any minor child to be part of a family vacation. I must point out that I was quite taken aback by the second and third respondents' view that alternative living arrangements must be made for A during the period that the applicants intend to travel. The minor, having been in the care of the applicants since the age of 2 years and some months, the suggestion of being left in the care of strangers, is unfounded.

 

[32]       The applicants are currently the minor's primary caregivers. They are considered suitably equipped to provide alternative care, a fact attested to by the extension of the applicants' foster care responsibilities. There is no reason to suspect that they will relinquish this responsibility while on vacation. They provide in the minor's emotional and intellectual needs. The vacation will enhance the minor child's experience of what can be referred to as a typical family vacation in a stable family environment. He can only benefit from observing and being included in an extended family environment while on vacation. A is already five years old, and the sense of adventure associated with a vacation at Ponta de Ouro will provide an invaluable experience. In these circumstances and in the absence of any fears that the applicants will abscond with the minor, or that the family vacation is a ruse to remove the child from the country for one or other unsavoury purpose, there is no justification to refuse consent that the minor is removed from the Republic. It will not increase the uncertainties and inherent dangers generally associated with life to allow the applicants to travel to Ponta De Ouro with the minor.

 

[33]       It cannot be denied that a cumbersome responsibility is placed on the provincial head of social development in exercising a discretion when a request for the removal of a minor is to be considered. Each application needs to be considered within its unique factual matrix. Still, the best interests of the child remain paramount, and it must be discounted every time the provincial head of social development exercises this discretion.

 

[34]       The order sought by the applicants is couched in broad terms to encompass the removal of the child for holiday purposes for the entire period that the child is in their foster care. In light of s 169 of the Children's Act and the discretion that must be exercised by the provincial head of the department of social service when a child in alternative care is to be removed from the Republic, I am of the view that I will transgress the limits of this review application to grant a general consent.

 

[35]       It is a general principle that costs follow the event. No case was made out for the punitive costs order that is sought.

 

Order

In the result, the following order is granted:

1.         Non-compliance with the forms and service provided for in the Uniform Rules of Court is condoned, and this application is heard as an urgent application in terms of Rule 6(12).

 

2.         The refusal of the first respondent to approve the applicants' request to remove the minor child from the Republic of South Africa to Mozambique is reviewed and set aside.

 

3.         The applicants are authorised to remove the child from the Republic of South Africa to Ponta de Ouro in Mozambique during the period 1 June 2022 to 31 July 2022, to attend a family vacation.

 

4.         The applicants are to inform the CMR Wonderboom of the proposed visit 7 (seven) days before departure, and to inform the CMR Wonderboom of their return within 5 (five) days after re-entering the Republic of South Africa;

 

5.         The fourth respondent is directed to issue and provide the applicants with a passport for the minor child A[....] D[....] S[....] with identity number [....].

 

6.         The first respondent is to pay the costs of the application.

 

 

E van der Schyff

Judge of the High Court

 

Delivered: This judgement is handed down electronically by uploading it to the electronic file of this matter on CaseLines. As a courtesy gesture, it will be sent to the parties/their legal representatives by email.

 

Counsel for the applicants:       Adv. J. Holland-Mütter SC

Instructed by:                            Taute, Bouwer and Cilliers Inc.

For the first respondent:           Adv. P Managa

Instructed by:                           State Attorney, Pretoria

Date of the hearing:                 28 April 2022

Date of judgment:                     3 May 2022

 

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