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.

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ASYLUM SEEKERS PERMIT EXPIRED or NEW ONE needed – Don’t know what to do?

Apply Now for Temporary Residence even with EXPIRED LOCKDOWN PERMITS.

The Constitutional Court handed down a judgement in the Ahmed matter as well as a Court Order opening the door for Asylum Seekers and Refugees to apply to change their status to  temporary residence visa . Contact us now before this fantastic opportunity is lost .

Contact us now and ask me HOW CHANGE TO TEMPORARY RESIDENCE . Travel abroad from South Africa , get a Canada , Schengen Visa afterwards .

Under the new rules they don’t have to cancel their asylum or refugee status and can change to any visa class if they qualify from within South Africa.

For more information, Please contact us on :

Tel No landline CT  :  +27 (0) 21 879 5560

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Spouse Required to be present on submission of life partner and spousal application 

New development with respect to spouse / life partner application needs pictures of spouse/ life partner  and applicant , the SA spouse  must be physically present on day of application.  No excuses.  

This info was sent to vfs today they will action wef 1 Feb 2023 . It will be signposted on website and offices accordingly . As an aside you and I will understand why, the fraudulent SA life partner s who cry foul and say they stole my ID when caught out will be exposed as well as the syndicates .

I have no problem with this.  Pre 2014 it was mandatory for spouse to be with but the vfs context created a challenge as not being DHA.

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Tel No landline CT  :  +27 (0) 21 879 5560

Tel No landline JHB : +27 (0) 12 880 1490

Whatsapp  Tel No : +27 (0) 82 373 8415 - ( Whatsapp messages only, No calls )

Tel No office : +27 (0) 82 373 8415 ( Whatsapp messages only, No calls )  

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Undocumented, unmarried fathers cannot be excluded from their children’s birth certificates 

The CItizen | 19 Jan 2023

Gqeberha High Court judge said regulation was “irrational” and unconstitutional. 

A South African birth certificate and Identity document. 

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.

Case study

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.

READ THE FULL JUDGEMENT HERE

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.

Unconstitutional

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.

What does this mean to you 

There are 2 parts to this  question

1) child is just born and birth needs to be registered with DHA  

2) child is born , birth already registered , birth certificate issued and father now wants to be included on birth certificate.  

In case 1) no  problem he simply register as before being illegal except for 1 thing bearing in mind he is illegal so the question is post birth registration does civic affairs hand him over to immigration to be prosecuted as an illegal foreigners 2) to add father is called an insertion of natural fathers particulars and given its a citizenship amendment it takes  up to 1 year.

For more information, Please contact us on :

Tel No landline CT  :  +27 (0) 21 879 5560

Tel No landline JHB : +27 (0) 12 880 1490

Whatsapp  Tel No : +27 (0) 82 373 8415 - ( Whatsapp messages only, No calls )

Tel No office : +27 (0) 82 373 8415 ( Whatsapp messages only, No calls )  

Tel No admin : +27 (0) 64 126 3073 – ( Whatsapp calls only – No Messages ) 

Tel No sales : +27 (0) 74 0366127 - ( Whatsapp calls only – No Messages )

Please email us to info@samigration.com

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Police versus home affairs: A turf war is brewing

City Press – 18 January 2023

It’s only been a few months since the formation of the much-vaunted Border Management Authority (BMA), but there is already a tense stand-off between the new force and the SA Police Service (SAPS).

The specialised BMA force was established in terms of the Border Management Authority Act with the specific mandate to protect ports of entry into South Africa.

Launched in July last year, it boasts 200 members, with another 400 to follow in the coming months.

However, City Press understands that the SAPS top brass are refusing to remove their officers from the notorious Beitbridge border post between Zimbabwe and South Africa, which is known to be so corrupt that the movement of illicit goods and the trafficking of people is commonplace.

BMA sources told City Press that border guards at Beitbridge were getting resistance from police officers who previously had the responsibility of protecting the port of entry. The officers are allegedly reluctant to hand over access control operations to the new guards, who have the same powers that the police do under law.

It is believed that the resistance stems from the fact that some of the entrenched officers have interests in the transportation of illegal goods and immigrants between Zimbabwe and South Africa.

A well-placed source said: 

We have good reason to believe that some of the taxis and buses that transport undocumented people coming from Zimbabwe into South Africa are owned by SAPS officers. The border guards are clamping down and, when they do so, they are finding huge resistance from the police officers.

A senior immigration officer at the department of home affairs said the police officers were “reluctant to get out and let the border guards take over”.

Another official stationed at the Beitbridge border said it was an open secret that there were police officers working at the post who live above-average lifestyles.

“Some openly brag about the size of the homes and number of taxis and buses they have here in Limpopo. So, it would be of no surprise that the kind of shift and relocation of people required to have a full takeover of border security is shaking everyone with one illegal arrangement or another,” said the official.

IMMIGRANTS COME THROUGH BOTSWANA

Speaking to City Press this week, Home Affairs Minister Aaron Motsoaledi said the BMA guards were already making an impression in collaboration with other law enforcement authorities.

Motsoaledi said he had not been made aware of the icy relationship between the police and border guards.

The minister said he was eagerly awaiting the deployment of 400 more border guards, after receiving information that Botswana was fast becoming the new hotspot for smuggling and moving undocumented immigrants.

Motsoaledi said:

Their operations at Beitbridge are so effective that people who are coming into the country illegally are now running to enter through other border crossings, such as the one between us and Botswana

He said there weren’t many guards at that border, “since we didn’t have problems with Botswana”.

“When we deploy border guards, most of them are sent to Beitbridge because that’s where the problem is. It was just last week that I was informed that people who are coming in illegally are now using Botswana. So, that’s why we need to increase guard numbers so that they [immigrants coming into the country illegally] don’t find any place where we don’t have enough border guards. That’s why I’m eagerly awaiting the deployment of the 400 border guards.”

POLICE INSIST THEY BELONG AT THE BORDER POST

Police spokesperson Brigadier Athlenda Mathe said the police and the border guards were working well together at all 72 ports of entry across the country. She insisted that SAPS officers would remain at their respective posts.

Mathe said:

The SAPS took a decision that the functions performed by the police at the ports would not be transferred to the BMA, which means that police at the ports will continue to be present to perform policing duties as mandated by the Constitution in terms of section 205

“It must be mentioned that, as things stand, the police, in cooperation with the other departments that are deployed at the ports, are working to curb cross-border crimes as per their mandate. The police are not working alone at the ports.

“So, police officers will continue [to work] at border ports to execute their mandate alongside the other departments, including the guards of the BMA. The deployment of the guards is not to replace the police at ports.”

BMA IS THE ‘THIRD ARMED FORCE’

Motsoaledi disputed this, saying that the BMA Act gives the commissioner of the border authority the same status as the commissioner of police, and gives BMA guards the same powers as the men and women in blue.

He said that “South Africa has a third armed force”, in addition to the police and the defence force.

“The only difference is that the police commissioner covers a bigger pool of resources across the country, while the BMA commissioner focuses on crime fighting as well as border security and management at our ports of entry.”

Motsoaledi said Justice and Correctional Services Minister Ronald Lamola had given the border guards a certificate declaring them a crime-fighting unit in their own right, meaning that they are a law enforcement agency.

“Before that, they could only stop you at the border and they could only arrest you in the presence of the police. If there were no police officers, then they couldn’t make an arrest.”

COMMISSIONER HAILS BREAKTHROUGHS

BMA commissioner Mike Masiapato confirmed that the increased visibility of the border guards had led to, among other things, the interception of 5 433 undocumented travellers.

After the undocumented travellers were processed and had had their fingerprints taken, they were deported to their home countries.

Masiapato said that, since the deployment of the border guards last year, a total of 29 stolen vehicles had been recovered and handed over to SAPS detectives for further investigation.

Masiapato said:

Border guards further intercepted undeclared cash to the value of R488 163 across ports. That was also handed over to the SAPS for investigating in connection with money laundering

Motsoaledi said they were waiting for the finance minister to issue an allocation letter to the BMA to start the recruitment process of the next 400 border guards.

“We know that the finance minister announced the allocation. We are now simply waiting to receive an allocation letter from National Treasury and, once that comes through, we will kick-start the process of recruiting the people who are going to take over the posts.”

He said another milestone achieved by the BMA since its inception was getting warring trucking companies at Beitbridge and at the Lebombo border post between South Africa and Mozambique to work together for the first time during peak travelling season.

“The commissioner and the trucking organisations had lengthy meetings, whereas in the past, instead of cooperating, they would compete with each other and stop each other from operating. In essence, they were pulling each other back and didn’t realise that everyone was losing,” Motsoaledi said.

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