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[2013] ZAFSHC 209
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Monchusi v Taaibosch (1418/2013) [2013] ZAFSHC 209 (14 November 2013)
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FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRCIA
............................................................................................................................................................................................................
Case No: 1418/2013
In the matter between:
ELDRID CLAYTON
MONCHUSI
...................................................
Applicant
and
GERONIQUE TAAIBOSCH
.......................................................
Respondent
JUDGMENT BY: SESELE,
AJ
HEARD ON: 17 OCTOBER
2013
DELIVERED ON: 14
NOVEMBER 2013
[1] The applicant seeks
an order in the following terms:
1. that the applicant be
declared the biological father and acquires full responsibilities and
rights in respect of the minor child
in terms of section 21 of the
Children’s Act 38 of 2005 (“the Act”);
2. that the parenting
plan marked annexure “A” entered into between the parties
on 19 March 2013 be made an order of
court in terms of section 33 of
the Act;
3. that the applicant and
the respondent be awarded guardianship of the minor child in terms of
section 24 of the Act;
4. that the respondent be
ordered to alter the surname of the minor child from the respondent’s
surname to that of the applicant
in terms of the Births and
Registration Act 51 of 1992, as amended, alternatively, that the
applicant be entitled to amend the
surname of the minor child.
5. costs in the event of
opposition.
[2] The parties had a
[…......] from 2004 until December 2009 and thereafter they
had a […......] which they call
“on and off”.
[3] The minor child was
conceived and was subsequently born during December 2010. The child
was registered under the surname of
the applicant.
[4] Sometime thereafter
the respondent changed the minor child’s surname to the
respondent’s without the applicant’s
consent.
[5] Both Mr Oosthuizen
and Mr Thompson submit that prayers 1, 2 and 3 should be made the
order of court by agreement between the
parties.
[6] Mr Thompson for the
respondent takes the view that the only issue for determination is
whether the respondent can be ordered
tochange the minor child’s
surname from the respondent’s surname to the applicant’s,
alternatively, whether the
applicant is entitled to change the minor
child’s surname.
[7] Mr Oosthuizen
contends that the applicant acquired full parental responsibilities
and rights as well as guardianship of the
minor child at birth and
the applicant was as such not the sole guardian of the minor child.
[8] Mr Thompson argues
that the respondent acted within her power in terms of section
25(1)(c) and
section 25(1A)
of the
Births and Deaths Registration Act
51 of 1992
when the respondent changed the minor child’s
surname because the respondent was the sole guardian of the minor
child.
[9] In my view the
starting point is to determine whether the applicant had the power to
change the minor child’s surname
at the material time.
[10] Section 25(1)(c) of
the Births and Deaths Act provides:
“
When
the birth of any minor born out of wedlock has been registered under
the surname of his or her natural father and the natural
father
consents thereto in writing, unless a competent court grants
exemption from such consent, his or her mother or his or her
guardian, as the case may be, may apply to the Director-General for
the alteration of his orher surname to the surname of his or
her
mother, or the surname which his or her mother has resumed, or the
surname of his or her guardian, as the case may be, and
the
Director-General may alter the registration of birth of that minor
accordingly in the prescribed manner: Provided that the
man who
married the mother of a minor mentioned in paragraph (a) or (b),
shall grant written consent to the alteration.”
[11] Section 25(1A) of
the same Act provides:
“
Notwithstanding
subscription 1(b) and (c), the natural father’s written consent
is not required where the mother has sole
guardianshipof the child
concerned.”
[12] In my view a proper
interpretation of section 25(1)(c) read with section 25(1A), is that
the natural mother has the power to
change the minor child’s
surname if the minor child was born out of wedlock and the natural
mother is the sole guardian of
the minor child.
[13] The Children’s
Act 38 of 2005 and in particular section 19 provides:
The biological mother of
a child, whether married or unmarried, has full parental
responsibilities and rights in respect of the
child;
If –
the biological mother of
a child is an unmarried child who does not have guardianship in
respect of the child; and
the biological father of
the child does not have guardianship in respect of the child,
the guardian of the
child’s biological mother is also the guardian of the child.”
[14] It follows therefore
that as at the date when the respondent changed the minor child’s
surname, the respondent was the
sole guardian of the minor child, and
did not need the applicant’s permission to change the minor
child’s surname.
[15] Now that the
applicant acquires a,
inter alia
, guardianship of the minor
child by agreement, both parties become the joint guardians of the
minor child. It follows that they
must both agree and effect any
change that they may wish regarding the surname of the minor child.
[16] The court is unable
to make an order the applicant seeks in prayer 4 because it is not
the applicant’s case that the
respondent refuses to give
consent to the change of surname subsequent to acquiring guardianship
of the minor child.
[17] The circumstances of
the case are such that a cost order against either party may be
detrimental to their relationship as the
biological parents are also
the joint guardians of the minor child.
ORDER
[18] The applicant is
declared the biological father and acquires full parental
responsibilities and rights in respect of the minor
child, C.J.T, in
terms of section 21 of the Children’s Act 38 of 2005.
[19] The parenting plan
marked annexure “C” entered into by and between the
parties on 19 March 2013 is hereby made
the order of court in terms
of section 33 of the Children’s Act 38 of 2005.
[20] The applicant and
the respondent are awarded joint guardianship of the minor child in
terms of section 24 of the Children’s
Act 38 of 2005.
[21] There is no cost
order.
_________________
L. M. S. SESELE, AJ
On behalf of
theapplicant: A. Oosthuizen
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv. D. R. Thompson
Instructed by:
Bruintjies Attorneys
BLOEMFONTEIN
/ebeket