REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 19578/2024
In the matter between:
VJS Applicant
And
SH Respondent
Heard: 10 October 2024
Delivered: Electronically on 22 October 2024
___________________________________________________________________
JUDGMENT
___________________________________________________________________
LEKHULENI J
Introduction
[1] This is an application in which the applicant seeks an order that his parental
responsibilities and rights as contemplated in section 18(2)(a),(b),(c), and (d) of the
Children’s Act 38 of 2005 in respect of the minor child PJH, born on 24 November
2017 be terminated. The applicant seeks an order deleting certain paragraphs of the
settlement agreement which was incorporated into the final order of divorce issued
by this court on 14 December 2022, under case number 8870/22, which finali sed the
dissolution of the marriage between the applicant and the respondent. These
paragraphs specifically address the applicant's obligations to maintain the minor
child and outline the applicant's access rights to the child.
[2] In addition, the applicant fur ther seeks an order permitting him to approach
the Department of Home Affairs for the alteration and deletion of his name as the
father of the minor child from both the population register and her birth certificate
without requiring the respondent's consent.
Background Facts
[3] The applicant is an adult male , a project manager for the local guard force for
the US Embassy in P akistan, which is situated in I slamabad. He is, however,
domiciled in Kraaifontein in the Western Cape. The applicant and the respondent
were married to each other in 2012. On 14 December 2022 , this Court granted a
decree of divorce dissolving the marriage between the applicant and the respondent
and incorporat ed the terms of a settlement agreement entitled ‘parenting plan ’
dealing with care and contact and maintenance of the minor child into the final
divorce order.
[4] In terms of the said settlement agreement, it was ordered that the minor child
born during the marriage between the applicant and the respondent would primarily
remain in the care of the respondent subject to the applicant's rights of contact. The
parties agreed that the respondent and the applicant would make joint decisions in
respect of the minor child. The applicant was further ordered to pay maintenance
towards the minor child in the sum of R7500 per month.
[5] The parties also agreed in the settlement that the applicant will keep the minor
child as a dependent on his medical aid scheme or hospital plan. If the medical aid
or hospital plan does not cover cer tain medical expenses, the parties agreed that
they should be equally liable for those expenses. The applicant and respondent
further agreed that the respondent would remain the primary carer of the minor child
subject to the applicant's rights of contact. Additionally, the parties agreed that the
respondent and the applicant would make joint decisions in respect of the minor
child. To date, the applicant is fully compliant with the divorce order, including
maintenance payments for the minor child.
[6] However, the applicant asserts that certain information recently came to his
attention, which indicated that the applicant may not be the biological father of the
minor child. This information relates to a WhatsApp conversation between the
respondent and o ne Mr MW that came to the applicant's attention. The applicant
avers that the said conversation clearly demonstrated that the respondent and Mr
MW were involved in an extramarital affair during at least a period when the
applicant was working abroad. On re flection, the applicant stated that he realised
that this period corresponded more or less with the minor child's estimated date of
conception. In the WhatsApp conversation, Mr M W asked the respondent in
Afrikaans "kyk moi na my dogtertji, " loosely transla ted to "please look after my little
girl."
[7] In response to the message, the respondent indicated that she knew the
minor child's real father and where he was. The applicant attached an excerpt of the
WhatsApp messages between the respondent and Mr M W to this application.
Pursuant to this information coming to the applicant's attention, the applicant
underwent two paternity tests. The applicant had a paternity test done by LAB DNA
Scientific (Pty) Ltd. Pursuant to the test done in by this lab, the appli cant was
excluded as the biological father of the minor child. The applicant subsequently had
another paternity test done by Genediagnostics (Pty) Ltd. The test conducted by this
lab also excluded the applicant as the biological father of the minor child. The
applicant asserted that the two test results constitute conclusive evidence that he is
not the minor child's biological father.
[8] According to the applicant, it appears the respondent and Mr MW intentionally
withheld this pertinent information from him. The applicant only assumes that this
was done for the purpose of benefiting from his maintenance payments. The
applicant stated that from this information, particularly the test results, it follows that
he should have no parental rights and responsibility in respect of the minor child and,
furthermore, that the divorce order needs to be amended by deleting the relevant
clauses to reflect the same. In addition, the applicant implored the court to order that
the population register, and the minor child's birth certificate be amended to reflect
the true position regarding the aforesaid. The applicant sought leave to do so without
the consent of the respondent.
[9] This application with a date of hearing, the relevant annexures and th e blood
test results were served personally upon the respondent, and the latter did not file
any notice to oppose or an answering affidavit. Furthermore, the respondent did not
appear at the hearing of the matter.
Preliminary Point
[10] As previously stated, the applicant is domiciled in the Western Cape but
currently works in I slamabad, P akistan, as a project manager for the local guard
force of the US Embassy. As a result, his affidavit was not conventionally attested or
commissioned. The applicant's legal representative filed an affidavit stating that the
applicant is constantly being monitored and that any visit by him to the embassy or
police station will raise questions that can put his employment at risk. The applicant's
legal representative also indicated that the applicant will only be returning to South
Africa at the end of the year and that the divorce order, particularly the maintenance
clauses regarding the minor child, will remain operative until the relief sought herein
is granted.
[11] As a result, on 05 September 2024, the applicant's legal representative
transmitted an unsigned version of the founding affidavit to the applicant through e -
mail. Thereafter, and on 05 September 2024, the applicant, the commissioner of
oaths, and the applicant's legal representative were on a video conferencing call via
the Zoom platform. The applicant identified himself by presenting his identity
document to the commissioner of oaths. The applicant's attorney stated that he
previously met th e applicant whilst the applicant was in South Africa and could
confirm that it was indeed the same person known to him.
[12] During the Zoom video call, the applicant proceeded to initial the affidavit and
annexures and signed on the last page above his name while he, the commissioner
of oaths, was on the call. Thereafter, the commissioner asked the applicant whether
he knew and understood the contents of the declaration that was emailed to him,
whether he had any objection to taking the prescribed oath a nd whether he
considered the prescribed oath as binding on his conscience.
[13] The applicant acknowledged that he knew and understood the contents of the
declaration and informed the commissioner of oaths that he did not have any
objection to taking the prescribed oath and that he considered the oath to be binding
on his conscience. Pursuant thereto , the commissioner then administered the oath,
causing the applicant to utter the words, “I swear that the contents of the declaration
are true, so help me God.”
[14] The applicant thereafter scanned and emailed a copy of his signed affidavit to
his attorney’s email address. Once the scanned copy of the signed affidavit was
received, the applicant’s attorney transmitted the same to the commissioner of oaths.
The commissioner in both the applicant and the applicant’s legal representative’s
presence printed the affidavit out, initialled every page, completed and signed the
certificate on the last page of the affidavit and completed his particulars as required
in terms of the relevant Act. The original was subsequently sent to his office via
courier which he subsequently filed in the court file.
[15] The commissioner of oaths filed a confirmatory affidavit stating that apart from
the medium of Zoom video call conferencing being used, compliance has taken
place with the regulations governing the administering of oaths and affirmations
promulgated under section 10 of the Justices of the Peace and Commissioners of
Oaths Act 16 of 1963. In the confirmatory affidavit, the commissioner of oaths further
stated that the signature on the affidavit is that of the applicant.
Legal principles on commissioning of affidavits
[16] The Regulations Governing the Administration of Oaths have been
promulgated in terms of section 10 of the Justices of the Peace and Commissioners
of Oaths Act 16 of 1963.1 Section 5 of the Act confers upon the Minister of Justice or
officer of the Department of Justice delegated thereto in writing by the Minister the
power to appoint any person as a commissioner of oaths for any are a fixed by the
Minister or delegated officer. While on the other hand, section 7 deals with the power
of a commissioner of oaths. It states that:
“Any commissioner of oaths may, within the area for which he is a
commissioner of oaths, administer an oath or affirmation to or take a solemn
or attested declaration from any person: Provided that he shall not administer
an oath or affirmation or take a solemn or attested declaration in respect of
any matter in relation to which h e is in terms of any regulation made under
section ten prohibited from administering an oath or affirmation or taking a
solemn or attested declaration, or if he has reason to believe that the person
in question is unwilling to make an oath or affirmation or such a declaration.”
[17] Section 8 of the Act deals with the administration of oaths or affirmations
outside of the borders of the Republic. Section 8(1)(a) and (b) provide for the
appointment of holders of any office in a country outside the Republic as
commissioners of oaths at the place where they hold office. Section 8(2) requires a
commissioner of oaths attesting an affidavit outside the republic to authenticate the
affidavit by affixing thereto the seal or impressing thereon the stamp used by him in
connection with his office or, if he possesses no such seal or stamp, certify thereon
under his signature to that effect.
[18] Section 10(1)(b) of this Act confers upon the Minister of Justice the power to
make regulations prescribing the form and manner in which an oath or affirmation
shall be administered, and a solemn or attested declaration shall be taken, when not
prescribed by any other law. To this end, Regulations 1 and 2 of the Regulations
Governing the Administration of an oath or affirmation set out the manner and form in
which an oath or affirmation must be administered. While Regulations 3 and 4
provide as follows:
1 See GN R774 of 23 April 1982.
3(1) The deponent shall sign the declaration in the presence of the
commissioner of oaths.
(2) If the deponent cannot write he shall in the presence o f the commissioner
of oaths affix his mark at the foot of the declaration: provided that if the
commissioner of oaths has any doubt as to the deponent’s inability to write,
he shall require such inability to be certified at the foot of the declaration by
some other trustworthy person.
4(1) Below the deponent’s signature or mark the commissioner of oaths shall
certify that the deponent has acknowledged that he knows and understands
the contents of the declaration and he shall state the manner, place and date
of taking the declaration.
4(2) the commissioner of oaths shall –
(a) sign the declaration and print his full name and business addre ss below
his signature; and
(b) state his designation and the area for which he holds his appointment or
the office held by him if he holds his appointment ex officio.
[19] In terms of Regulation 6, a commissioner of oaths shall not charge any fee for
administering any oath or affirmation or attesting any declaration . Regulation 7
prohibits a commissioner of oaths to administer an oath or affirmation relating to a
matter in which he has an interest.
Is the applicant ’s affidavit commissioned via an audiovisual link a valid
affidavit?
[20] It is trite that a court has a discretion to refuse to receive an affidavit attested
otherwise than in accordance with th e regulations depending upon whether
substantial compliance with them has been proved or not. It is for the court, after
considering the totality of the evidence, to determine whether as a fact substantial
compliance with the regulations is proved. Whether there has been such a
substantial compliance with the regulations is a matter of fact, not of law. 2
Compliance with the regulations provides a guarantee of acceptance in evidence of
affidavits attested in accordance therewith.
[21] From the reading of Regulation 3(1) , it is eviden t that a deponent must sign
the declaration in the presence of the commissioner of oaths. The purpose of
obtaining the deponent’s signature to an affidavit is primarily to obtain irrefutable
evidence that the relevant disposition was indeed sworn to.3 It has been held that the
provisions of th is regulation are not peremptory. 4 In other words, non-compliance
with the regulation does not intrinsically invalidate an affidavit.
[22] In this case, it is common cause that the applicant's affidavit was
commissioned unconventionally through a virtual platform whilst the deponent was
outside the republic by a commissioner of oaths in the republic. The commissioner of
oaths, a practising advocate of this division, confirmed in a confirmatory affidavit that
he had no interest in this matter. He stated that he was satisfied that the applicant
was the person who identified himself to be. Additionally, the commissioner of oaths
stated that apart from the medium of Zoom video conferencing being used,
compliance has occurred with the regulations governing administering oaths and
affirmations promulgated under section 10 of the enabling Act.
[23] From the affidavit of the applicant’s legal representative and the commissioner
of oaths’ deposition, it is evident that the deponent produced a form of identification
to the commissioner’s satisfaction before the oath was administered. In addition, the
commissioner of oaths asserted that he was satisfied that the signature on the
affidavit belonged to the applicant. In other words, the applicant signed the affidavit
virtually in his sight and of th e commissioner of oaths . The only difficulty in this
matter is that the affidav it was not signed in the physical presence of the deponent
as required by the regulation.
2 S v Munn 1973 (3) SA 734 (NC) at 737H – 738A.
3 S v Munn (supra) at 737F.
4 Ladybrand Hotels (Pty) Ltd v Stellenbosch Farmers’ Winery Ltd 1974 (1) SA 490 (O).
[24] The remote commission ing of affidavit s has bee n the subject of debate in
recent times. 5 In various cases , applicants sought a broad interpretation of “in the
presence of” in regulation 3(1). The phrase in the presence of has been interpreted
by the courts in various sections of our law. For instance, in Gulyas v Minister of Law
and Order,6 the court considered section 40(1)(a) of the Criminal Procedure Act 51 0f
1977 (‘the CPA’) which speaks of an offender who "commits or attempts to commit"
an offence in the presence of a peace officer. The court equated in the presence of
to be analogous to within eyeshot or immediate vicinity or proximity of for the
purposes of s ection 40 (1) (a).7 The reasons for a commissioner of oaths and the
deponent to be within eyeshot of one another is for the commissioner of oaths to
ascertain the identity of the deponent by examining the identity document provided
and comparing it to the deponent, and to ensure that the correct papers are properly
deposed to.
[25] Section 158 of the CPA provides that except as otherwise expressly provided
by the Act or any other law, all criminal proceedings in any court shall take place in
the presence of the accused. Furthermore, a court may, on its own initiative or on
application by the public prosecutor, order that a wi tness, irrespective of whether the
witness is in or outside the Republic or an accused, if the witness or accused
consents thereto, may give evidence by means of closed -circuit television or similar
electronic media. In other words, a witness may take oath s and testify in the
presence of the accused through a close -circuit link. This arguably expands the in
the presence of the accused phrase.8
[26] Recently, section 37C of the Superior Courts Act 10 of 2013 and section 51C
of the Magistrates Court Act 32 of 1944 were enacted to permit courts to receive
evidence via remote audiovisual links in non-criminal proceedings. This development
enhances the flexibility and accessibility of the judicial process. Section 37C(5) of the
5 LexisNexis South Africa (Pty) Ltd v Minister of Justice and Correctional Services (2023-010096)
[2024] ZAGPPHC 446 (29 April 2024); Nedbank Limited v Alvetex 15 (Pty) Ltd and Others (unreported
case number: 042994/2023)(18 June 2024); ED food S.R.L v Africa’s Best (Pty) Ltd (unreported case
number: 1245/2022) (GJ)(14 March 2024).
6 1986 (3) SA 934 (C).
7 At 740D.
8 See Otzen P and Brouwer A ‘Remote Commissioning of Affidavits: Who can commission them and
how it is done? De Rebus, June 2020.
Superior Courts Act establishes that a witness who gives evidence by means of an
audiovisual link is regarded as a witness who was subpoenaed to give evidence in
the court in question. 9 In ot her words, a witness who takes oath and testifies via
audiovisual link is considered as a witness who testified physically in court. Section
37(6) provides that for purposes of this section, 'audiovisual link' means facilities that
enable both audio and vi sual communications between a witness and persons in a
courtroom in real-time as they take place. Section 158(6) of the CPA reinforces these
important sentiments, underscoring that:
“For purposes of this section, a witness who is outside the Republic a nd who
gives evidence by means of closed-circuit television or similar electronic
media, is regarded as a witness who was subpoenaed to give evidence in the
court in question.” (emphasis added)
[27] These developments, in my view, are a testament that the benefits of
technology should be utilised and incorporated into our justice system to improve the
efficiency of civil litigation in our courts. This will go a long way in optimising access
to justice for civil court litigants. I understand that different divisions of the High Court
in our country have adopted CaseLines, where pleadings, affidavits, and relevant
documents are uploaded to the CaseLines portal. In my opinion, this clearly
demonstrates that the courts are acknowledging the significance of technology and
the advantages it brings. This recognition reflects an evolving understanding of how
technology can enhance legal processes and improve access to justice.
[28] In FirstRand Bank limited v Briedeman,10 the court observed that th e
language of Regulation 3(1) when read in the context of the Regulations as a whole,
suggests that the deponent is required to append their signature to the declaration in
the physical presence or proximity of the commissioner. The co urt noted that this
accords with the concern for place insofar as the exercise of the authority to
administer an oath is concerned, as appears from the Act. The court stated that it is
9 This section was inserted by section 18 of the Criminal and Related Matters Amendment Act 12 of
2021 (wef 5 August 2022).
10 2022 (5) SA 215 (ECG).
not ordinarily open for a person to elect to follow a different mode of oath
administration than that which is statutorily regulated.
[29] I appreciate the views expressed by the court however, I am of the view that
each case must be dealt with on its own merits. Furthermore, if a witness can take
an oath and testify through a close circuit television or audiovisual link as envisaged
in section 37C of the Superior Courts Act and section 158 of the CPA , the same
principle, in my view, applies with equal force to a deponent who takes an oath when
an affidavit is commissioned through the audiovisual link. Expressed differently, in
my view, there is no diff erence between taking an oath through a virtual platform for
testifying and taking an oath when an affidavit is commissioned using an audiovisual
link.
[30] We need to remind ourselves that t he purpose of administering an oath
normally before a witness t estifies is to ensure that he does not speak lightly and
frivolously but weighs his words; to impress on him the solemnity of the occasion,
and above all to provide a sanction against untruthfulness .11 This principle is
applicable in the same manner, irrespective of whether the witness is physically
present with the commissioner of oaths or is participating through an audiovisual link.
[31] In Uramin (incorporated in British Columbia t/a Areva Resources Southeren
Africa v Perie ,12 the court stated that courts must adapt to the requirements of the
modernities within which they operate and upon which they adjudicate. The court
also stated that the Constitution and the Rules enjoin the courts to make the
necessary developments on a case-by-case and era-by-era basis.
[32] As modernisation unfolds, it is important for the courts to open themselves to
the modern trend of technology. 13 Interestingly, notwithstanding the provisions of
Regulation 3(1) discussed above that the deponent is required to append his
signature to a d eclaration in the physical presence of the commissioner , the
regulations applicable in domestic violence application depart completely from this
11 S v Munn (supra) at 736H.
12 2017 (1) SA 236 (GJ) paras 27 and 33.
13 ED Food S.R.L v Africa's Best (Pty) Ltd (2022/1245) ZAGPJHC 1619 (14 March 2024) at para 32.
requirement and under scores the need to embrace the evolution of technology.
Section 1(3) of the Domestic Violence Regulations 2023,14 provides that:
“If any document that requires to be made under oath or on affirmation is
submitted electronically or through the online portal, the clerk of the court may
administer the oath or affirmation through an audio -visual communication with
the person required to s ign the document: Provided that the document is
signed before the oath or affirmation is administered.” (emphasis added)
[33] I am mindful that courts must be careful not to substitute their preferred policy
choices for those of the legislature, a democra tically elected body entrusted with
legislative powers . I am also regardful that courts must respect the legislation the
legislature enacts as long as the legislation does not offend the Constitution .15
However, I am of the firm view that there are cases where it poses great difficult y
and hardship or even impossib le for litigants to comply with the Regulations .16 In
such circumstances, it is my respectful view that courts ought to adopt a more
pragmatic approach and accept affidavits executed via audiovisual links. However,
the court must still be satisfied that there was substantial compliance with the
Regulation before condonation for non -compliance is gr anted. This will, in my
opinion, make access to courts a reality for everyone, as envisaged in section 34 of
the Constitution.
[34] Moreso, given the unfolding modernisation of the courts, sections 13(4), 14
and 15 of the Electronic Communications and Tra nsactions Act 25 of 2002 have
done well to facilitate the use of electronic communications, particularly of data
messages (e-signatures included).
[35] The reality is that when the Justices of the Peace and Commissioners of
Oaths Act was passed over 60 years ago, internet and video conferencing were not
envisaged. Notably, South Africa's legal system depends significantly on evidence
14 Government Notice R3289 of 2023 . Published in Published in Government Gazette 48428 on 14
April 2023.
15 Chirwa v Transnet Ltd and Others 2008 (4) SA 367 (CC) para 174.
16 See Robyn Snyman and Bukhobethu Matyeni ‘Sign on the virtual line – commissioning affidavits in
the digital era’ De Rebus in 2022 (April) DR 14 who share the same sentiments.
provided on affidavits. In practice, almost every civil court appl ication in the High
Court and the Magistrate's Court requires a signed and commissioned affidavit. Rule
55(1)(a) of the Magistrate’s Court Rules and Rule 6(1) of the Uniform Rules of Court
provides that every application must be brought on notice of motion supported by an
affidavit as to the facts upon which the applicant relies for relief. Furthermore, most
agreements in financial institutions are done electronically. To this end, I agree with
the views expressed by Singh that the traditional wet ink signing of affidavits is
extremely cumbersome, as the signing and commissioning process is costly and
time-consuming, particularly for witnesses who are outside the shores of the
Republic.17
[36] Undoubtedly, the virtual e-signing of affidavits could serve as an easier, faster
and more cost-effective measure in civil litigation. The Rules Board for Courts of Law
has considered that the benefits of technology should be utili sed and incorporated
into the civil justice system to improve the efficiency of our courts and the processes
of litigation, which would optimally utili se resources and enhance access to justice
for users of the civil justice system. 18 The modernisation of the civil litigation process
will provide several advantages, including reduced costs, prevention of unreasonable
delays, and a quicker resolution of cases. Evidently, the ability to sign and
commission affidavits through video conferencing will s ignificantly save time, reduce
travel expenses, and expedite the finalisation of cases.
[37] In the circumstances, it is inherently critical in my view that the Justices of the
Peace and Commissioners of Oaths Act and th e relevant Regulations should be
amended to bring them in line with modernisation by allowing for electronic signing
and commissioning of affidavits.
[38] In this case, I am satisfied that there was substantial compliance with the Act
and the Regulations. The evidence placed before this court clearly establishes that
the purposes of Regulation 3(1) have been complied with. In my view, it will not be in
the interest of justice for the applica nt to travel to South Africa to have his affidavit
17 Ciresh Sing ‘A Sign’ of the Times: A brief Consideration of the validity of e-signatures in agreements
and affidavits in South Africa’ (2024) 45 Obiter at 60.
18 Rules Boad for Courts of Law – Republic of South Africa: Proposed New E-Rules and Amendments
to the Uniform and Magistrates Rules for the Electronic Civil Justice System. (09 March 2021).
commissioned in the physical presence of the commissioner of oaths. It will only
delay the finali sation of the application and incur costs. I therefor accept the
applicant's affidavit deposed in the manner described in this judgment as complying
in substance with the provisions of the Regulations.
The applicant’s application on the merits
[39] The applicant applies that his parental rights and responsibilities be
terminated as it is established that he is not the father of the child. Under the
common law, when a child is born into an existing marriage, the husband of the
mother of the child is p resumed to be the biological father, and this is known as the
pater est quem nuptiae demonstrant maxim. However, this presumption is
rebuttable.19 This means that it can be rebutted if the husband produces proof to the
contrary.
[40] The applicant and the respondent were legally married. The child was born
during their marriage. Pursuant to the pater est quem nuptiae demonstrant maxim,
the applicant was presumed to be the father of the child. In terms of section 20 of the
Children Act 38 of 2005, the applicant, as a putative father, had full parental
responsibilities and rights in respect of the said child as he was married to the
respondent at the time of the child's conception and birth. In terms of sections 19 and
20 of the Children's Act, the applicant and the respondent both hold full parental
rights and responsibilities in respect of the child.
[41] It has now been established in this matter that the applicant is not the father of
the child. Two scientific tests have excluded the applicant as the father of the child.
The applicant asserted that the conversation between the respondent and Mr MW
demonstrated that they were involved in an extramarital af fair when the applicant
was working abroad. On reflection, the applicant reali sed that this period
corresponded with the minor child's estimated date of conception.
19 See Heaton J and Kruger H South African Family Law (2015) 4 ed at 35.
[42] As stated above, the respondent was served with this application personally
and she chose not to oppose this matter. The sheriff explained to her the nature and
the exigency of the application. Notwithstanding, the respondent chose not to attend
court. In my view, on the facts placed before this court, it is abundantly clear that the
respondent knew all along that the applicant was not the father of the child but
decided to conceal this information from the applicant. Her communication with M r
MW clearly demonstrates that she knew that the applicant was not the child's father.
In addition, her WhatsApp communication with Mr MW accords with the scientific test
results, excluding the applicant as the father of the child. Ostensibly, the respondent
hid this information from the applicant to receive maintenance from him. In my view,
the respondent's conduct appears to be a paternity fraud. Her conduct in my view,
constitutes misrepresentation.
[43] The respondent intentionally identified the applicant as the father of her child
knowing very well that the child’s father was Mr WM. As previously stated, the DNA
test have excluded the applicant as the father of the child. I am mindful of th e
centrality of th e child’s best interest s as enshrined in section 28 (2) of the
Constitution. However, the applicant has no legal duty to maintain the child. He
should not be saddled with the responsibility of paying child maintenance, as the
child is not his. In my view, the applicant's application for the termination of his
parental responsibilities and rights, as outlined in the settlement agreement, should
be granted.
Order
[44] Given all these considerations, the following order is granted:
44.1 The applicant's parental responsibilities and righ ts, as contemplated in
section 18 of the Children's Act 38 of 2005 in respect of the minor child PJH,
born on 24 November 2017, are hereby terminated.
44.2 Paragraphs 1 (including sub-paras), 2.4 , 2.5, 3 (including sub -paras),
paragraph 4 (including sub-paras), paragraph 5 (including sub-paras), and 6.4
of the settlement agreement entitled ‘parenting plan ’ incorporated in the
divorce order granted on the 14 of December 2022 in this court under case
number 8870 /2022 (dealing with maintenance and contact) are hereby
deleted.
44.3 The applicant is granted leave to approach the Department of Home
Affairs for the alteration and deletion of his name as the father of the minor
child on both the population register and her birth certificate without the
consent of the respondent.
44.4 No order is made as to costs.
_____________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPEARANCES
For the applicant: Adv. S Van der Merwe
Instructed by: Jos Veldhuizen Attorneys
41 Ray Cloes
Eversdal
Durbanville