A mother’s bid to permanently relocate to Israel with her two children, with whom she shares joint custody with their father, has been put on hold while a court battle ensues around her looming deportation.
The High Court in Johannesburg has interdicted the Home Affairs Department from deporting the mother (“TRS”), who is illegally in South Africa after her spousal visa from a previous marriage expired .
High Court Judge Stuart Wilson had to interdict her deportation by the department after she was expected to report to its offices on Monday.
According to the judgment, the mother, after her spousal visa expired “unwisely obtained a fraudulent permit on which she relied for some time to remain in the country”.
“She was eventually found out, charged, convicted and is now subject to deportation as an illegal foreigner.
There is no suggestion that the third respondent, the minister, is inclined to revisit TRS’s status as an illegal foreigner, and I must accept, for present purposes, that she is liable to deportation at any time. It appears that the minister has agreed to stay his hand until October 30 (yesterday), but there is no guarantee that TRS will be allowed to remain in South Africa beyond that date,” said Judge Wilson.
The judge said the looming deportation of the mother, who intended to take her two boys with her while having joint custody of them with their father who opposes having them go with her, “is obviously a highly unsatisfactory situation”.
The mother, who holds Israeli and US passports, said she intended to return to Israel where she had “loving and supportive extended family” after experiencing an “emotionally volatile time” in South Africa.
The father, however, opposes her application to permanently relocate, preferring that all three of them remain in the country, but if her application was granted that the children remain.
“The question of whether (the mother) should be permitted to relocate to Israel with the children seems to me to be one of real complexity. As things stand, both she and (the father) play equally important roles in their children’s lives,” said Judge Wilson.
“I have no doubt that each of them has developed a close and loving bond with the children. Whatever happens in this case, the children are likely to suffer some detriment. If the mother leaves with the children, they will lose the closeness of a loving father. If she leaves without the children, they will be separated from their mother.
“At the tender ages of 1 and 3, either of these outcomes could be devastating for them. But just as potentially undesirable is a situation in which the mother remains precariously in South Africa to be with the children, with all the stress that would cause her, and which would likely be transmitted in some way to the children.
“Another possible outcome is that she is given leave by the minister to remain in South Africa permanently, but that she never really settled here, and is left in a state of anguish and resentment as a result. That, too, will clearly affect the children and their well-being,” said the judge.
While litigation in the matter continues, he said as the interdict was interim in nature, it “remained open to the minister or to the fourth respondent, the director-general, to apply to court for appropriate relief in the event that new circumstances arise which justify the interdict’s variation or discharge”.
The department had not responded to questions by deadline on Monday.
Cape Times