Introduction
The Western Cape High Court recently delivered an important judgment clarifying the application of passport and citizenship requirements to minor children travelling internationally. In A.T.A v L.A.A (2025/246332) [2025] ZAWCHC 597 (19 December 2025), Da Silva Salie J addressed fundamental misconceptions about section 26B of the South African Citizenship Act 88 of 1995 and the court’s role as upper guardian in authorising international travel involving children of divorced parents.
The Factual Matrix
The applicant father sought authorisation to travel with his sixteen-year-old son to the United States for a two-week visit during the December school holidays. The parties had divorced in 2018, with the father having been granted contact rights. The father also sought ancillary relief relating to the renewal of the child’s South African passport at the Department of Home Affairs.
The respondent mother opposed the application on two primary grounds. First, she contended that the proposed travel would be unlawful due to alleged non-compliance with South African citizenship and passport legislation. Second, she expressed concern that without confirmation of a return flight, and given the father’s alleged encouragement for the child to reside permanently in the United States, the child might not be returned to her primary care.
The Mother’s Citizenship and Passport Objections
Central to the mother’s opposition was her interpretation of the South African Citizenship Act. She argued that the minor child could face arrest, be treated as a visitor upon return, or be barred from re-entering South Africa if travel occurred without full compliance with passport formalities. She further contended that granting the relief sought would place the court in conflict with the Citizenship Act and that she herself could incur criminal liability as a guardian.
These concerns were premised on an incorrect understanding of section 26B of the Citizenship Act, which provides that a major South African citizen who enters or departs the Republic using the passport of another country commits an offence punishable by fine or imprisonment not exceeding twelve months.
The Court’s Analysis of Section 26B
Da Silva Salie J addressed these contentions directly and found them to be legally incorrect. The court emphasised that section 26B applies expressly and exclusively to major citizens. The provision does not extend to minor children, does not criminalise a child’s travel, and does not divest a child of South African citizenship by reason of passport non-compliance.
The court further held that a South African citizen cannot be rendered a visitor in his or her own country, nor can such citizen lawfully be excluded from the Republic. At most, non-compliance with passport requirements may give rise to administrative consequences capable of rectification through established Department of Home Affairs processes.
Significantly, the court found that section 26B does not render unlawful a court order authorising international travel involving a minor child. The provision does not place the court in conflict with statute where such travel is regulated by appropriate conditions aimed at ensuring compliance with administrative requirements.
The Court as Upper Guardian
The judgment reaffirmed the well-established principle that courts are routinely called upon to regulate international travel involving minor children in the context of divorce orders and parental disputes. As the upper guardian of minor children, courts are empowered to grant travel authorisation subject to conditions safeguarding the child’s return and compliance with immigration and passport requirements.
The court held that outstanding administrative processes, without more, do not justify the refusal of travel where such travel is authorised and demonstrably consistent with the child’s best interests. This is a critical principle for practitioners handling international travel disputes in family law matters.
Best Interests Assessment
Turning to the substantive merits, the court assessed whether the proposed travel served the minor’s best interests as contemplated in section 28(2) of the Constitution. The court noted that the mother’s opposition was framed predominantly in legal and administrative terms and did not establish that the proposed travel would be detrimental to the minor’s welfare, safety, or emotional well-being.
During argument, it was confirmed that a return flight had been scheduled for the minor departing the United States on 6 January 2026 and landing on 7 January 2026. The father had also already paid the minor’s tuition fees for his private school in Cape Town commencing in January 2026. The court was satisfied that no evidence suggested the father sought to frustrate the minor’s return to South Africa or to undermine the mother’s parental rights.
The court emphasised that the application must be assessed with reference to the minor’s best interests rather than conjecture regarding hypothetical future administrative difficulties. On this basis, the court was satisfied that the two-week visit would be in the child’s best interests.
Practical Safeguards in the Order
The court’s order contained several important safeguards to protect both the child’s interests and the mother’s rights. The father was directed to attend the Department of Home Affairs together with the mother and both minor children to apply for passport renewals. The mother’s consent to the passport application was dispensed with should she not consent, with the court order serving as sufficient authority for the Department to process the application.
The order required the father to provide the mother with confirmed flight itineraries, accommodation addresses in the United States, and contact telephone numbers at least twenty-four hours prior to departure. During the travel period, reasonable telephonic or electronic contact between mother and child was to be facilitated, having due regard to time-zone differences. The father was also directed to take all reasonable steps to ensure compliance with applicable immigration and passport requirements.
The Sibling Relationship Dimension
An important aspect of the judgment concerns the court’s concern about the younger son, aged thirteen, with whom the father appeared to have little relationship. Da Silva Salie J raised concerns during the hearing that fostering a relationship and facilitating travel with the older son should not come at the expense of the younger son. The court expressed concern that differential treatment could potentially cause tension between the siblings.
To address this issue, the court directed the Office of the Family Advocate to conduct an investigation and provide a report on care and contact arrangements in relation to both minor children, with particular focus on the father’s relationship with the younger son. The matter was postponed to allow for this investigation, with the report due by 15 May 2026 and a further hearing scheduled for 15 June 2026.
This aspect of the judgment serves as an important reminder that courts must consider the impact of orders on all children affected by parental disputes, not merely the child who is the immediate subject of the application.
Implications for Practice
This judgment provides important clarity for practitioners handling international travel applications involving minor children. The key principles emerging from the A.T.A case include:
The legislative framework governing passport requirements and citizenship offences must be correctly understood. Section 26B of the Citizenship Act applies only to major citizens and does not create obstacles to court-authorised travel by minors. Practitioners should be cautious about advancing arguments based on mischaracterisation of statutory provisions.
Courts retain broad powers as upper guardian to regulate international travel involving children, subject to the paramount consideration of the child’s best interests. Outstanding administrative processes do not, in themselves, constitute grounds for refusing travel authorisation where the substantive merits support such authorisation.
Practical concerns about a child’s return can be adequately addressed through appropriate conditions in the court order. Evidence of return arrangements, continued schooling, and existing ties to South Africa will be relevant in addressing such concerns. Speculative arguments unsupported by evidence are unlikely to succeed.
Where one parent raises technical legal objections to travel, the court will assess whether those objections have substance or whether they constitute an attempt to frustrate the other parent’s legitimate contact rights. The focus remains on whether the proposed travel serves the child’s welfare rather than on hypothetical administrative difficulties.
Conclusion
The A.T.A judgment provides welcome clarity on the interaction between citizenship legislation, passport requirements, and court authorisation of international travel by minor children. By firmly establishing that section 26B of the Citizenship Act applies only to major citizens and does not constrain the court’s powers as upper guardian, Da Silva Salie J has removed an obstacle that might otherwise have been raised in future travel authorisation disputes.
The judgment also serves as a reminder that courts must adopt a holistic approach to contact disputes, considering the impact of orders on all children affected by parental separation. The court’s direction for a Family Advocate investigation into the father’s relationship with both sons reflects appropriate concern for sibling relationships and equitable treatment of all children within a family unit.
For family law practitioners, the case reinforces the importance of grounding opposition to travel applications in substantive concerns about the child’s welfare rather than technical legal arguments that may not withstand scrutiny. Where travel is genuinely in a child’s best interests and appropriate safeguards can be put in place, courts will not allow administrative processes to frustrate legitimate contact arrangements between a parent and child.
Questions and Answers
What is the scope of application of section 26B of the South African Citizenship Act 88 of 1995?
Section 26B applies expressly and exclusively to major South African citizens. The provision makes it an offence for a major citizen to enter or depart the Republic using the passport of another country. Upon conviction, such a person is liable to a fine or imprisonment not exceeding twelve months. The section does not apply to minor children at all.
Can section 26B be used to prevent a minor child from travelling internationally with one parent?
No. Section 26B does not apply to minor children, does not criminalise a child’s travel, and does not render unlawful a court order authorising international travel involving a minor child. The provision does not place the court in conflict with statute where such travel is regulated by appropriate conditions aimed at ensuring compliance with administrative requirements.
What happens to a minor South African citizen who travels without full compliance with passport formalities?
A minor South African citizen cannot be rendered a visitor in his or her own country, nor can such citizen lawfully be excluded from the Republic. At most, non-compliance with passport requirements may give rise to administrative consequences capable of rectification through established Department of Home Affairs processes. The child does not lose citizenship or face criminal liability.
What is the court’s role as upper guardian in relation to international travel by minor children?
Courts are routinely called upon to regulate international travel involving minor children in the context of divorce orders and parental disputes. As the upper guardian of minor children, courts are empowered to grant travel authorisation subject to conditions safeguarding the child’s return and compliance with immigration and passport requirements.
Can a parent incur criminal liability under section 26B for facilitating a minor child’s travel without full passport compliance?
The court in the A.T.A case found this contention to be speculative and unsupported. Criminal liability under section 26B presupposes conduct by a major citizen, prosecutorial discretion, and a factual matrix not established in the proceedings. The provision does not create criminal liability for guardians in respect of a minor child’s travel.
Do outstanding administrative processes at the Department of Home Affairs justify refusing travel authorisation?
No. Outstanding administrative processes, without more, do not justify the refusal of travel where such travel is authorised and demonstrably consistent with the child’s best interests. The court can authorise travel subject to appropriate conditions even where passport renewal processes are incomplete.
What is the test that courts apply when considering applications for international travel by minor children?
The application must be assessed with reference to the minor’s best interests as contemplated in section 28(2) of the Constitution. The court must consider whether the proposed travel would be detrimental to the minor’s welfare, safety, or emotional well-being. Conjecture regarding hypothetical future administrative difficulties is not sufficient to refuse authorisation.
Can a court dispense with one parent’s consent to a passport application for a minor child?
Yes. Where the court is exercising its powers as upper guardian and the travel is found to be in the child’s best interests, the court can dispense with the consent of a parent ordinarily required for the application or renewal of a South African passport. The court order itself serves as sufficient authority for the Department of Home Affairs to accept, process and finalise the application.
What evidence is relevant in addressing concerns that a parent may not return a child after international travel?
Evidence of confirmed return flight bookings, payment of school fees for the upcoming term in South Africa, and the child’s existing educational and social ties to South Africa are all relevant. In the A.T.A case, the father had booked return flights and paid school fees, which satisfied the court that he did not intend to frustrate the child’s return.
Can a court authorise travel where the child will use documents other than a valid South African passport to depart?
Yes. In the A.T.A case, the court authorised the minor to depart with a receipt issued by the Department of Home Affairs for passport renewal, the expired passport, birth certificate, United States passport, and the court order itself. The court has the power to regulate the documentation required for departure where this serves the child’s best interests.
What safeguards should be included in an order authorising international travel by a minor?
Appropriate safeguards include requiring the travelling parent to provide confirmed flight itineraries showing both outbound and return flights, accommodation addresses in the destination country, contact telephone numbers, and directions to facilitate reasonable telephonic or electronic contact between the child and the remaining parent. The order should also direct compliance with applicable immigration and passport requirements.
Must a court consider the impact of travel authorisation on siblings who are not the subject of the application?
Yes. The court in the A.T.A case emphasised that a relationship with one sibling must not be fostered at the expense of another. The court expressed concern that differential treatment could cause tension between siblings and directed a Family Advocate investigation into the father’s relationship with both children, not merely the one seeking to travel.
Can opposition to a travel application be based purely on technical legal or administrative grounds?
While such grounds can be raised, they must have legal substance. The court will assess whether opposition is genuinely based on valid legal concerns or whether it constitutes an attempt to frustrate legitimate contact rights. In the A.T.A case, the mother’s technical objections based on mischaracterisation of section 26B were rejected, and the court focused on the substantive best interests inquiry.
How should time-zone differences be accommodated in facilitating contact during international travel?
The court must build flexibility into orders to account for practical realities. In the A.T.A case, the order required the travelling parent to ensure the remaining parent was afforded reasonable telephonic or electronic contact with the child, having due regard to time-zone differences. This recognises that contact cannot always occur at times that would be convenient if both parties were in the same jurisdiction.
What is the appropriate costs order in international travel applications between parents?
The court retains discretion based on the nature of the dispute and the parties’ ongoing parental relationship. In the A.T.A case, the court ordered that each party bear their own costs, having regard to the nature of the dispute, the parties’ ongoing parental relationship, and the fact that the applicant appeared in person. The focus is on what is just and equitable in the circumstances.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculator and Accrual Calculator.
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