Court asked to permit unmarried couples in life partnerships to claim maintenance when separated

IOL – 26 January 2023

Pretoria - The Western Cape High Court is being asked to develop common law legislation to permit unmarried couples in life partnerships to claim maintenance from one another in the event of a separation.

As the law stands, the right is reserved only for heterosexual couples who are legally married.

The development sought is aimed at providing a remedy for maintenance upon the termination of a permanent life partnership, in circumstances where the parties had undertaken reciprocal duties to support one another during the existence of the partnership.

A woman, whose relationship with her partner and the father of her three children has broken down, is trying to claim maintenance from him.

As the law does not make provision for this, and in light of him refusing to financially maintain her, she has turned to court in a bid for the common law to allow for maintenance.

Her lawyer, leading family law expert Bertus Preller, explained that it was the same as a Rule 43 application where couples, pending the finalisation of a divorce, ask for interim maintenance.

The application was sparked by his client (the woman), who is asking that pending the final determination of an action in which she claims against the respondent (her former partner) for the provision of her reasonable maintenance needs.

The first step before she can do this, however, is to ask the court to declare that common law recognises the existence of a duty of support between partners in unmarried, opposite sex partnerships, where the relationship has broken down.

Once she has overcome the hurdle, the woman (who cannot be identified as there are children involved), will ask that her former partner contribute towards her maintenance as well as her legal costs in the pending action.

The parties were involved in a romantic relationship for more than nine years before the man eventually left the family home. Three children were born from the relationship. The parties cohabited from 2015, following the birth of their first child, and the man took care of her.

The woman explained in an affidavit before court that they had met at a gym while the man was married. They fell in love and he eventually left his wife and moved in with her.

She worked at the time, but following the birth of their first child and later, their twin boys, the man, an affluent businessman, convinced her not to work, but to take care of the children.

He subsequently paid for everything and they lived a financially comfortable life. The woman received about R100  000 a month from him.

The relationship, however, finally broke down last year and the man eventually moved out. While he is paying an amount for the upkeep of the children, he refused to pay her maintenance.

The woman said she was fearful of leaving him as he frequently threatened that if she did, she would be left destitute and “end up on the street”.

On one such occasion, he threatened to “out-litigate” her and told her that he was “willing to spend millions on lawyers” to ensure that she did “not get a cent” from him.

Preller said many partners, predominantly women, were left destitute and without legal recourse when their life partnership terminated.

“This issue affects a substantial number of South Africans, particularly vulnerable women, and some find themselves in permanent life partnerships not out of true choice. The reality is that, as at 2016, 3.2 million South Africans were cohabiting outside of marriage and that number was reported to be increasing.”

Preller said it was mainly unmarried, cohabiting women who were getting the short end of the stick.

The Women’s Legal Centre Trust entered the proceedings as a friend of the court and supported the common law application. Arguments are expected to proceed next month.

www.samigration.com

Court rules on unwed fathers

Judge says regulation on registration of unwed fathers without documents on children’s birth certificates is “irrational” and unconstitutional

26 January 2023 | Goundup

• The Eastern Cape High Court in Gqeberha has found a regulation that was stopping undocumented fathers from being registered on their children’s birth certificates unconstitutional.
• The regulation affects the rights of thousands of children simply through the circumstances of their births, Judge Mbulelo Jolwana said.
• He said it was “irrational” and it had never gone through a parliamentary process.
• The rights of citizens cannot be subject to the whims or attitudes of officials in government offices, the judge said.

A regulation preventing the naming of a foreign, unmarried father who is in South Africa illegally on his child’s birth certificate is unconstitutional, the Eastern Cape High Court in Gqeberha has ruled.

Judge Mbulelo Jolwana said the regulation, which provides that a foreign father of a child born out of wedlock must submit a copy of his valid passport, visa, permit, permanent residency, ID document or refugee identity document in order to be registered, was not only irrational but was contrary to the best interest of the child.

It was also at odds with the Births and Deaths Registration Act which imposed no such rule.

The matter before Judge Jolwana was brought by the unmarried biological parents of a young child. The mother is South African. The father is Bulgarian and his visa has expired.

Officials at the Department of Home Affairs refused to register him as the father on his child’s unabridged birth certificate, saying he was no longer legally in the country and because he was not a South African citizen, he had to undergo a paternity test.

The couple launched a court action for an order compelling the department to include the fathers name on the birth certificate and challenging the constitutionality of the relevant regulation.

Judge Jolwana noted that the Minister of Home Affairs had initially opposed the matter, citing the father’s illegal presence in the country and that the regulation “made it impossible” to include the father’s name on the certificate.

During the hearing, his lawyers made a “180 degree turn” and conceded the issues, claiming that the regulation actually did not apply in this matter.

But the couple said the constitutional issue still needed to be aired given that it was a matter of significant public interest.

Lawyers for the minister said that given their capitulation, it was not necessary and the issue was now “moot”.

But Judge Jolwana said they had not explained their earlier stance and their “change of tack” and it called for an explanation.

“It is impossible to appreciate what informed this sudden change and it makes it even difficult to resist the temptation to conclude that the sudden change of mind was in bad faith, designed to cripple and disable the court from enquiring into the constitutionality of the regulation … which continues to bedevil children born in similar circumstances as the child in this matter.

“As can be gleaned from [the minister’s] affidavit, every day in all Department of Home Affairs offices throughout the country, those seeking the registration of their details in the birth records of their children are turned away if their fathers happen to be illegal foreigners,” the judge said, noting that there had been no concession regarding the constitutionality or otherwise of the regulation.

“Rights of citizens cannot be subject to the whims or attitudes of the attending officials in government offices … courts must act when rights, especially the rights of children, are allegedly being undermined.

“The court cannot ignore the fact that there may be literally thousands of other children who are treated no differently from this child, even as we speak … an inquiry into the constitutionality of this regulation is a matter of public importance.”

Judge Jolwana said neither the Constitution nor the Children’s Act distinguished between children on the basis of the citizenship of their parents.

The couple, he said, contended however that the regulation discriminated against their child, who was a South African citizen, because of the circumstances of birth.

In the matter before him, the fact that the father had been unable to renew his visa “has nothing to do with the child and his right to have the identity of his father officially recognised”.

Judge Jolwana said the regulation was “irrational”, noting that it had not gone through any parliamentary process and flew in the face of international instruments dealing with the rights of children.

The Act itself made no distinction between local and foreign fathers – those legally in the country and those that are not.

He declared the regulation to be unconstitutional and ordered the minister to pay the costs on a punitive scale, noting the last-minute about turn.

“For them to force people such as the applicants to approach court, only to admit that they were wrong from the onset, is troubling,” the judge said.

www.samigration.com

Chinese govt favours SA for travel groups - thanks to Covid-19 tests not being enforced

News 24 – 26 January 2023

SA's tourism market can benefit from the pent-up demand created among Chinese tourists during their years of lockdown.

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• China reopened its borders earlier in January after years of strict lockdowns during the pandemic.
• SA, which did not impose mandatory Covid-19 testing for Chinese tourists, is on a list of countries approved by the Chinese government for group travel from China.
• Countries like the US, UK, India, Japan, and France, which decided to impose mandatory Covid-19 testing for Chinese travellers, are noticeably absent from the group travel list.

South Africa's decision to not impose Covid-19 tests on Chinese tourists is one of the key reasons why it is one of the first countries to which the Chinese government has approved group travel.

China reopened its borders earlier in January after years of strict lockdowns during the pandemic. Individual travellers with the necessary permission could start travelling outside the country again.

Last week, the Chinese government released a list of 20 countries to which it will allow group travel as of 6 February. Group travel is only permitted via travel agencies accredited by the Chinese government.

South Africa is on this list, which, apart from eight Asian countries, includes Russia, the UAE, Switzerland, Egypt, and Kenya.

Countries like the US, UK, India, Japan, and France, which decided to impose mandatory Covid-19 testing for Chinese travellers, are not on the list. The Chinese government has criticised mandatory Covid-19 testing, claiming such measures lack a scientific basis.

Last week, the Chinese embassy in SA tweeted, "glad to hear that #SouthAfrica will be one of the first countries to receive Chinese tourists organised by Chinese travel agencies and online travel companies starting from 6 February 2023".

Charles Wang, product and marketing manager of Walk Through Africa Tours, based in Johannesburg, says not imposing mandatory Covid-19 testing will help to bring more Chinese tourists to SA.

For example, when South Korea announced stringent rules regarding Covid-19 control of Chinese tourists, there was a noticeable decline in numbers.

Stats from online travel agency platforms in China has shown a five times increase in searches on SA and that the popularity of SA has increased by 330%, according to Wang.

"It is more than exciting to know that China has selected SA among the first countries where agency-organised traveling will be allowed again. We feel it is an unparalleled opportunity for the SA tourism industry," says Wang.

"Ease of travel is important. In addition, [SA being on the list of 20] is mutual recognition of efforts being put into coping with Covid-19 by both countries."

China had the world's largest outbound tourism market before the pandemic. In 2019, outbound Chinese tourists peaked at nearly 155 million. According to the World Travel & Tourism Council (WTTC), Chinese visitors worldwide contributed US$ 253 billion to the global economy in 2019. South Africa only attracted just more than 93 000 Chinese travellers in 2019.

"It is important to understand that the tourism industry serves not only a financial benefit but also brings opportunities from trade and commerce. It is utterly important in understanding the growth-driven mechanism of tourism in building, facilitating, and boosting the trade activities between the two countries," says Wang.

Johan Groenewald, managing director of Royal African Discoveries, which specialises in bringing tourists from Asia to SA, says not requiring negative Covid-19 tests from Chinese tourists will likely contribute to SA being chosen as a travel destination. At the same time, SA should not expect a sudden influx of "hordes of Chinese tourists," in his view. 

"There are no direct flights to SA from China. Singapore Airlines is the only Asian airline flying into SA currently. Middle Eastern airlines plan to start flying to China again, which will be an indirect route for Chinese travellers to use to SA. Tickets to SA as long haul destination are expensive on top of that," explains Groenewald.

Nevertheless, SA's tourism market can benefit from the pent-up demand created among Chinese tourists during their years of lockdown. 

During the pandemic, because no Chinese tourists were coming to SA due to their lockdown, some travel agencies focusing on the Chinese market had to close their doors. Many Chinese tourists do not speak English and use Mandarin-speaking tour guides. Many of these tour guides have either returned to China or found alternative work during the pandemic. The infrastructure able to cater to Chinese tourists in SA, therefore, needs to be re-established, according to Groenewald.

An SA travel agent who deals with the Chinese market but wants to remain anonymous explains that travel from China is highly regulated, especially for the average citizen. That is why the Chinese government favours packaged tour groups travelling together and under the guidance of endorsed travel agencies.

In his view, SA is one of the first countries to which the Chinese government has approved group travel to restart because SA did not impose mandatory Covid-19 testing or other travel restrictions for Chinese tourists.

Minister of Tourism Lindiwe Sisulu told News24 that China and the rest of Asia are tourism target markets for SA.

"We are working very hard to attract tourists from that part of the world. However, we will follow all advice from our Departments of Health and Home Affairs regarding protocols to follow when tourists enter SA. Our country is open for business and tourists," said Sisulu.

SA's Department of Health announced earlier that because the dominant Covid-19 variant of concern in China and the world remains Omicron, and it believes immunity in SA from vaccination and natural immunity is still strong, it puts SA at less risk. The department has not seen any changes in rates of Covid-19 infection, hospital admission, and deaths.

"We have consulted the Ministerial Advisory Committees (MACs) and World Health Organisation (WHO), and in both cases, the advice has been that there is no need to impose travel restrictions on any country, including China," the department stated.

www.samigration.com

Court grants mother right to keep children in SA away from nomadic father in US

Pretoria News – 25 January 2023

Pretoria - A father of three who lives in Texas in the United States – said to have subjected his children to a nomadic life and who is so controlling that he even watches his children’s weight – lost his legal bid in a South African court to have his children returned to him.

The father launched proceedings in the Johannesburg High Court in terms of The Hague Convention on the Civil Aspects of International Child Abduction Act, to have his children returned.

The purpose of the Convention is to protect children from the harmful effects of their wrongful removal from the country of their habitual residence to another country, or their wrongful retention in another country.

The Convention does so by establishing a procedure to secure the prompt return of any such child to the country of their habitual residence so that custody and similar issues in respect of them can be adjudicated upon by the courts of that country. The Convention is primarily aimed at deterring self-help, and provides for the return of children in such circumstances.

But Judge Fiona Dippenaar ruled that the evidence before the court proved that the children – aged7, 9 and 11 – will be placed in an intolerable situation if they are returned to the US.

The mother, a South African citizen, obtained permission from her husband to visit her parents here in July last year. While in South Africa, she instituted divorce proceedings against her “abusive” husband and decided not to return to the US. She has since stayed in Gauteng with the children on the same premises as her parents.

After the couple got married they mostly lived in Texas, and all three children were born in the US. The father, a US citizen, was born in Mexico. During 2018 the husband lost his job, the family condominium in Austin was sold, and the family moved to Chihuahua, Mexico, in July 2019. When he lost his job, they moved between Mexico and the US.

While the father painted a picture of a stable home for the children in the US, which he said was far more promising than life in South Africa, the mother painted a picture of a family without roots and who had lived a nomadic existence when the father lost his job.

The mother, an occupational therapist, did not work as her husband had forbidden her to do so. He also refused that the children attend school; they were homeschooled.

The mother and children had to accompany the father wherever he obtained work and had to illegally cross the Mexican border each time as neither the mother nor children had valid passports or visas to live in Mexico.

The mother said the father was a manipulative, domineering and controlling person who abused her – both physically and emotionally, and excessively controlled and dominated the children. She also referred to the “military style exercises” he forced the children to do, his obsessions with hoarding, religion and his male dominance in the family.

She and the children lived in fear of him, she said, as he insisted on controlling their lives and making choices about the children’s hairstyles and clothing, and was obsessive about none of them gaining weight.

Coupled with their nomadic lifestyle, she said the children are better off in South Africa with her. The children also voiced their desire to rather live in South Africa, where they are free to socialise and to go to school.

The judge said the father lacked appreciation for the impact life in the US had on the children and the risks of forcing them to travel wherever he finds work, even if it meant crossing borders “in a clandestine manner”.

He presented a glowing picture of life in Texas filled with opportunities while contrasting it to life in South Africa which “provides a far less certain future”. But the judge said his picture was painted in broad and abstract terms, and disregards the realities of the family’s life experiences and “the erosion of constitutional rights taking place in the US, and specifically Texas; rights protected under the South African Constitution.”

www.samigration.com

SA-born child leaves for Croatia with father after court rules against estranged wife

Pretoria News – 25 January 2023

Pretoria - A South African-born child aged 13 will next week start school in Croatia after her father won a legal battle against his estranged wife to take his daughter with him while he assists Ukrainian refugees in that country.

The child’s mother was shortly before Christmas ordered by the South Gauteng High Court in Johannesburg to allow the child to live with her father abroad.

Judge Shanaaz Mia ordered the mother to sign all the necessary documents relating to her daughter’s relocation. If the mother refused to sign the documents, the sheriff of the court was entitled to do so on her behalf, the order read.

Not only did the mother lose her battle for her child to remain here, but she was also instructed by the court to foot her husband’s legal bill.

Judge Mia made it clear that the interest of a child will always prevail. In this case the child made it clear she wanted to go to Croatia with her father, with whom she had a better relationship.

The judge said the court heard “the voice of the child” in this matter, as the daughter was old enough to express her wishes.

The couple met while the father worked on humanitarian and relief projects in the southern African region. The parties got married and the child was born during the marriage.

The mother stated in her opposing affidavit that her relationship with the child was strained. She noted, however, that there were efforts to improve this relationship.

According to her, the father simply wanted to take the child away in a bid to hurt her (the mother).

The father said he was due to start his new job assisting Ukrainian refugees in Croatia and he wished to return to that country, where his family resides and where his support system is based in the form of family and friends.

Having secured employment and accommodation, he was ready to depart, but the mother refused to give her consent.

Judge Mia said the Constitution was clear that decisions relating to children were paramount and must be taken having regard to their best interests.

“Where the child’s interests and an adult’s interests are not congruent, the adult’s interests must yield to what will promote the child’s best interests,” she said.

The voice of the child report and the family advocate who consulted with the child indicated that the child wished to accompany the father to Croatia. The mother is of the view that the child, being female, required a parent of the same gender to guide her as she grows older.

The family advocate indicated that the mother would have contact regularly via WhatsApp and Zoom calls. She would thus be able to maintain her relationship with the child and to advise her and counsel her on any issues required by the child.

The mother was also concerned about the child’s safety, being in an area close to the war in Ukraine. But the court said the reality of the father’s work, in the humanitarian field, is that it will always take him to where the need arises.

“The first respondent’s (mother) concern about a war being waged in parts of Europe can be assuaged by her regular contact to check in with the child. The parties have the option of returning the child to South Africa should they feel she is in danger at any point,” the judge said.

While the father may take the child with him, he has to ensure that the mother has daily contact with the child.

www.samigration.com