She has secured a court order allowing her children to travel in and out of the country without the written consent of their father, as is required by the new visa regulations.
But the second part of her “public interest” Durban High Court application – to scrap in its entirety the new, controversial regulation which requires the consent of any non-travelling parent for any child wishing to travel overseas – is being challenged by the Minister of Home Affairs and, unless there is a change of heart, could take many months to resolve.
In terms of an order taken by consent before Judge Dhaya Pillay on Thursday, the minister has until March next year to file a full answering affidavit in the matter which is likely to go to the Constitutional Court.
The professor, who cannot be named to protect the identities of her children, aged 8 and 11, said in her court application that she and they were virtual prisoners in South Africa because she could not get the necessary written consent from their father, who was named on their birth certificates, but who had little to do with their lives.
She said there were many other single parents in the same situation, in which the other parent, while not having any parental rights or responsibilities, now had the power to decide whether or not their children could or could not leave the country.
She said her ex-husband lived in a home for unrehabilitated alcoholics in England and used every opportunity – such as being asked to consent to the children’s travelling – as a means to extort money from her.
In a provisional affidavit filed with the court, Home Affairs director-general Mkuseli Apleni denied that the application was urgent, pointing to the fact that the professor’s children had already been prevented from leaving South Africa in July this year because they did not have the required affidavit from their father.
Apleni said she should have made the application back then.
He said parents also had other alternatives.
“She has set out the grounds placing her and her minor children in the invidious position, but she acknowledges that she could apply for an order declaring her to be the sole holder of rights and responsibilities. She also states that she contemplated applying to a court to get sole guardianship.
“She is very much alive to these remedies.
“The Children’s Act also provides for a court order to be granted giving permission for the child to travel in the event of a dispute or if no consent is forthcoming. It is manifest that such a court order would provide a solution to her predicament.”
The mom, who is being represented by the Legal Resources Centre which has briefed advocate Stuart Humphrey to act pro amico, intends to proceed with the application.
She argues that the regulations conflict with the Children’s Act because they ignore the fact that not every parent named on a birth certificate would have acquired parental responsibilities and rights, such as dads who disappear soon after birth. It also ignores circumstances in which a biological father not named on the birth certificate has acquired those rights in terms of the act, she says.
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