This question was recently answered in a case that was heard in the South Gauteng High Court (Johannesburg). A Johannesburg family sought the assistance of the Johannesburg Children’s Court in a matter of adoption. The story starts in 1999 with a Zimbabwean mother, who was left pregnant and with a toddler in Zimbabwe, both children never met nor knew their biological father. He later passed on and it was therefore a moot idea.
In 2001 the mother came with her father to South Africa, to seek a better life. Her mother remained in Zimbabwe with her 2 children. Whilst here in 2005, she met and fell in love with a South African man. In 2008 the children moved to live with the couple in Johannesburg, by 2009 the couple married and continued to live as a family. Her husband had become the only father that her children had ever known and it was a role he enjoyed.
Unfortunately, despite their intentions to have the husband to legally adopt the children, upon approaching the relevant authorities they realised they did not have the finances to do so at the time. By 2015, they were finally able to financially manage the adoption and began the process. However, by that time the oldest child was over 18, therefore the father could only adopt the youngest- being the son.
The couple obtained all the necessary South African Government approvals, official documents from the Zimbabwean Consulate, had all the required medical tests completed, and obtained a recommendation from the Department of Social Development and a Social Worker.
The matter was finally in Court. Although by then the son was already 17 years old and nearing the age of majority, the couple felt it necessary to legalise the relationship with his “adoptive” father. They also feared deportation, as he was only here on a visitor’s visa – which had since expired. Deportation to Zimbabwe was unthinkable, South Africa was his home; it was where he was raised, and he no longer had any family in Zimbabwe.
However, the Magistrate hearing the Application dismissed it on the basis that the Court lacked jurisdiction to hear the matter, as the child was a foreigner, moreover, his visa had expired. This decision was made despite the relevant section of the Children’s Act which is Section 44 which reads as;
“The Children’s Court that has jurisdiction in a particular matter is
(a The court of the area in which the child involved in the matter was ordinarily resident”
The Children’s Court held that the child could not be ordinarily resident because his visa had expired, therefore, the Children’s Court did not have any jurisdiction to hear the matter and dismissed it.
Accordingly, with the assistance of Centre for Child Law the matter was brought on an urgent basis to be reviewed and set aside in the Johannesburg High Court.
The Johannesburg High Court found that the Children’s Court had erred in its decision to dismiss the Application on a reason of lack of jurisdiction. The High Court held that the Children’s Court does not exclude foreign children. It was found that Section 44 was misconstrued by the Children’s Court. The High Court held that the question of “ordinarily resident” is a factual question, it simply means “where the child eats, sleeps and drinks”.
The High Court set aside the Children’s Court decision and made the following orders in addition;
1 The immigration status of the child is irrelevant for determining jurisdiction of a Children’s Court;
2 The child is ordinarily resident in South Africa, and particularly Johannesburg;
3 The adoption is one of a local adoption not foreign adoption;
This judgment made by the South Gauteng High Court (Johannesburg) is ground-breaking in that this is a problem that many families find themselves facing when they are living in South Africa but might not be nationals. Whether it is adoption, contact, removal, or any other matter the Children’s Court may hear it. The High Court definitively states that a Children’s Court will hear your matter regardless of the nationality, more so because of the immigration status of the child. This judgment embodies Section 28 of the Children’s Act which simplified means that the best interest of the child is paramount.
Should you find yourself in a similar position, please do not hesitate to call Martin Vermaak Attorneys to assist you.