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[2014] ZAGPJHC 323
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Mulomba v Idisa (2014/05881) [2014] ZAGPJHC 323; 2015 (3) SA 62 (GJ) (6 October 2014)
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REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
CASE
NO: 2014/05881
DATE:
06 OCTOBER 2014
In
the matter between:
GLADYS
MIYOBA MULOMBA
.........................................
Applicant
And
KINGSLEY
IDISI
...........................................................
Respondent
J U D G M E N T
FISHER
AJ:
[1]
This matter came before me in the unopposed motion court as an
unopposed application. The Applicant, the mother of a minor child,
N........ O......... I............. (“
the child”
),
sought in terms of section 28 of the Children’s Act 38, 2005
(“
the Act”
) that all the Respondent’s
parental rights in respect of the child be terminated. It was clearly
contemplated in seeking
such relief that the parental
responsibilities would remain intact. Ancillary relief was sought in
the form of an order that the
surname of the child as registered with
the Department of Home Affair be changed from that of the Respondent
to that of the Applicant.
[2]
The salient facts of the application are as follows:
1.
The Applicant and the Respondent, who is
from Nigeria, are unmarried.
2.
The Applicant met the Respondent in South
Africa in August 2008 and the minor child was born on 27 May 2009 in
South Africa.
3.
The parties did not reside together at any
time
4.
After the birth of the child, the registration of the child’s
birth took place on the basis that Respondent was, with his
consent,
identified as the father of the child in the records of the
Department of Home Affairs.
5.
The relationship between the Applicant and the Respondent continued
for approximately a year after the birth of the child.
6.
Throughout the relationship between the parties, the Respondent
showed a lack of commitment to the child and did not maintain
him or
take any interest in his wellbeing.
7.
The Respondent has been invited by the Applicant to participate in
the child’s life, but has failed to do so.
8.
The Respondent has essentially abandoned the Applicant and the child
and is currently untraceable.
9.
The Applicant alleges that, whilst she and the Respondent were in
contact, she was told that he was involved in unlawful activities.
She alleges that he is of criminal disposition. She goes as far
to suggest that the Respondent “
may
even go the extent of selling the child if he were allowed to take
care of him without my supervision
”.
(I must add here that no proper basis laid for any of these serious
contentions).
10.
One of the main complaints of the Applicant is that she is
inconvenienced when seeking to travel out of the country with the
child in that she is required to request the consent of the
Respondent to remove the child from South Africa. She has family in
Zambia and wishes to travel there with the child.
11.
Service of the application took place by substituted service and
there was no opposition by the Respondent.
[3]
The Respondent acquired full parental responsibilities and rights by
virtue of section 21(1)(b)(i) of the Act when he consented
to being
identified as the child’s father.
[4]
When counsel for the Applicant stood up to move the application, I
indicated that, in my view, the relief sought in relation
to the
termination of the parental rights only (as opposed to rights and
responsibilities) was not competent. After some
debate in
relation to what would be a proper order in the circumstances, the
matter stood down, at counsel’s request, so
that a draft order
could be prepared requesting alternative relief. Counsel
appeared later with a draft order and moved for
the relief set out
therein. I was satisfied that a proper case was made out on the
papers for the relief contained in the
draft order. Pursuant thereto
the following order was handed down by me:
“
1.
The Respondent’s parental rights and responsibilities in
respect of the minor child, N........... O.......... I.......,
are
suspended until such a time as any application for maintenance is
made by or on behalf of the minor child.
2.
The Applicant is the sole guardian of the minor child during the
course of the suspension of the Respondent’s parental
rights
and responsibilities which will include:
2.1
to administer and safe-guard the child’s property and interest;
2.2
to apply for the minor child’s passport from the Department of
Home Affairs of South Africa and the necessary visas from
the
relevant foreign authority without the necessity of KINGSLEY IDISI
consenting thereto and/or signing any document;
2.3
to remove or consent to the removal or departure of the child from
the Republic of South Africa without KINGSLEY IDISI’s
consent.
3.
The Department of Home Affairs
[is to]
register the minor child with the
Applicant’s surname.
4.
No order is made as to costs
.”
[5]
I am now called upon by the Applicant’s attorneys, to provide
reasons for the order granted and more specifically as follows:
“
5.
We are instructed to request written reasons from the Honourable
Court for the decision:
5.1
to suspend the Respondent’s parental rights and parental
responsibilities as opposed to only suspending the Respondent’s
parental rights;
5.2
that the suspension will only be effected until such time any
application for maintenance is made by or on behalf of the minor
child;
5.3
not to terminate the Respondent’s parental rights.
”
[6]
On the basis that the relief sought on behalf of the Applicant was
granted, it is an unusual step for reasons to be sought by
the
Applicant. Be that as it may, and, on the basis that I do not
make a finding that an Applicant is entitled to reasons
in such
circumstances, I have decided to give a judgment in the matter. The
reason for this is that the matter involves the fundamental
rights of
a child as well as important considerations relating to the
interpretation of sections of the Act.
[7]
Chapter 3 of the Act deals with parental responsibilities and
rights. Section 18(2) states the following in relation to
parental responsibilities and rights:
“
(2)
The parental responsibilities and rights that a person may have in
respect of a child, include
the
responsibility and the right
–
(a)
to care for the child;
(b)
to maintain contact with the child;
(c)
to act as guardian for the child; and
(d)
to contribute to the maintenance of the child
.”
(My
emphasis)
[8]
In terms of section 1(1) of the Act parental responsibilities and
rights are defined to mean “
the
responsibilities and the rights referred to in section 18
”.
[9]
Section 18 represents a partial codification and recasting of the
common law concept of “
parental
power
”
or “
parental
authority
”.
[1]
Such concept amounts to a conglomeration of rights and obligations
that flow naturally from the state of being a parent. These
rights
and obligations, for the most part, exist concomitantly.A parent
naturally and in the absence of any limitation, has both
the right
and the obligation to carry out his or her overall function as
parent, with all that this entails.
[10]
The incidents laid down in sub-sections 18(2)(a) to (d) are cast as
both responsibility
and
right. It is clearly neither desirable not practicable to attempt to
define which of the incidence of the parental condition is
“
right
”
and which “
obligation
”.
[2]
.
[11]
The other sections in the Act dealing with parental responsibilities
and rights refer to such responsibilities and rights conjunctively.
There is no attempt made by the Legislature to delineate this concept
in a way that seeks to identify the components of this concept
as
being either right or responsibility.
[12]
Section 28 of the Act is no exception. It reads as follows:
“
28
T
ermination,
extension, suspension or restriction of parental responsibilities and
rights
(1)
A person referred to in subsection (3) may apply to the High Court, a
divorce court in a divorce matter or a children’s
court for an
order-
(a)
suspending for a period, or terminating, any or all of the parental
responsibilities and rights which a specific person has
in respect of
a child; or
(b)
extending or circumscribing the exercise by that person of any or all
of the parental responsibilities and rights that person
has in
respect of a child.”
[13]
Thus, on a purely linguistic treatment of section 28(1)(a), the
subject is not treated disjunctively - i.e. the section does
not
provide for a suspension or termination of any or all of the parental
responsibilities
or
rights. This indicates that it was not the intention of the
Legislature that a general suspension or termination of rights
alone
or responsibilities alone would be competent. (The section obviously
permits of orders where certain responsibilities and/or
rights can be
singled out for special definition and treatment, however this was
not sought here.)
[14]
Parental responsibilities and rights are, for the most part, two
sides of the same coin. Thus on a purposive interpretation
of section
28(1)(a), an order, which terminated rights but left in place
responsibilities, would be difficult, if not impossible
of
application. Such a result could never have been intended by the
Legislature.
[15]
The alternative relief sought in the draft order accorded with these
general principles on the basis that it did not seek to
separate
rights from responsibilities.
[16]
In relation to the suspension in the order, section 28(1)(a)
authorises the suspension of parental responsibilities and rights
“
for
a period
”.
The suspension thus cannot be indefinite. This suggests that it can
be for a specified period or can be linked to the occurrence
of a
future event.
[3]
The latter
approach obviously has the potential to create some uncertainty when
it comes to establishing, for the purposes of dealing
with third
parties, whether the event that delineates the suspension has
occurred or ceased to operate. The determination of the
status of
unmarried fathers, being as it is dependent on factors that are not
always readily apparent, is such that uncertainty
of this nature is
sometimes unavoidable
[4]
. Such
uncertainties are generally capable of resolution by way of affidavit
or other means of satisfying third parties as to the
position. As a
last resort the court can be approached for clarity.
[17]
The order sought in this matter linked the suspension of rights and
responsibilities to the child’s maintenance requirements.
I
considered this to be a proper course in the circumstances of the
matter.
[18]
Should the Respondent make a reappearance and be required to start
contributing to the maintenance of the child, this would,
in my view,
be a proper time for the suspension to end and for the scope of the
parent/child relationship to be revisited.
[19]
Whilst it is accepted that the obligation of a parent to maintain his
or her child is not, in the normal course, affected by
whether that
parent is allowed to exercise other parental rights and
responsibilities, the contribution by a father to his child’s
maintenance cannot be underestimated in relation to its importance to
the parental condition. This is recognised by the Legislature:
In
terms of the section 21(1)(b)(iii) the making of a contribution to
the child’s maintenance is an act that is regarded
as momentous
enough to bring about the acquisition by an unmarried father of full
parental responsibilities and rights where they
did not previously
exist.
[20]
I was satisfied that this provision in the order serves also to
preserve the right to claim maintenance, should such preservation
be
necessary. In this regard section 21(2) provides that the provisions
of section 21 “…
do not
affect the
duty
of a father to contribute
towards
the maintenance of the child.”
This suggests that the responsibility of an unmarried father to
maintain his child continues to exist as a duty which is
distinct and
independent from whether or not he has acquired parental rights and
responsibilities by operation of section 21, and
that the common law
position relating to the obligation to pay maintenance (i.e. that it
existed separately from the parental authority)
is thus preserved by
the Act. Whether the obligation to pay maintenance would
survive a blanket termination or suspension
of parental
responsibilities and rights under section 28(1)(a) is, however, not
clear. My sense in that it would, however I was
not called upon to
deal with this aspect in light of the terms of the order sought,
which operates, in any event, to preserve the
right to claim, at
least, future maintenance.
[21]
In the circumstances, and on a consideration of the relationship
between the child and the Respondent, the present degree of
commitment the Respondent has shown towards the child, and the
interests of the child generally, I considered that the order sought
on behalf of the applicant in terms of the draft order was a proper
one.
DC
FISHER
Acting
Judge of the High Court
APPEARANCES
:
For
the Applicant
:
Adv
Nzwisisai Dandadzi-Dyirakumunda
Instructed
by Fasken Martineau Inc
DATE
OF HEARING
20
May 2014
DATE
OF JUDGMENT
20
May 2014 06 October 2014
[1]
See
J. Heaton: Chapter 3 – Parental Responsibilities and Rights
in:
Commentary
on the Children’s Act
,
edited by CJ Devel and AM Skelton (revised Service 6, 2013) at 3-4
[2]
South
Africa is not alone in defining parental function as comprising
concomitant rights and responsibilities. Other jurisdictions
adopt
similar characterisations in their legislation, for example:
1.
section 3(1) of the United Kingdom, Children Act 1989 defines
“parental responsibility” to mean:
“
...
all the
rights
,
duties, powers, responsibilities and authority which by law a parent
of a child has in relation top the child and his property
”.
(My emphasis);
2.
section 61B of the Australian Family Law Act of 1975 defines
“parental responsibility” to mean “…
all
the duties,
powers,
responsibilities, and
authority
which by law parents have in relation
to children”.
(My emphasis)
[3]
In
Commentary
on the Children’s Act
:
supra
at
3-27 – J. Heaton (who contributed the section in this work on
Chapter 3) suggests that suspension can be linked to occurrences
such as jail terms of parents, the finding of proper accommodation
or rehabilitation of parents in respect of conditions which
may have
caused the suspension.
[4]
For
example it may be necessary to provide information in order to
satisfy a third party that a father has acquired full parental
rights and responsibilities in that he was living with the mother at
the time of the birth or that he has “
contributed
to the child’s upbringing”
as contemplated by section 21 of the Act.