IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Appeal Case No.: A46/2024
Case No.: 1762021/000227
In the matter between:
FCP
and
STC
CENTRE FOR CHILD LAW
Date of hearing: 13 Septembe r 2024
JUDGMENT DELIVERED ON 29 JANUARY 2025
GORDON-TURNER, AJ:
Introduction Appellant
Respondent
Amicus Curiae
1. This is an appeal from a judgment handed down by Acting Additional Magistrate
Horn on 4 October 2023 in the Maintenance Court Wynberg (the maintenance
judgment), which held that the Maintenance Court enjoyed jurisdiction to
continue maintenance proceedings brought by the respondent during January
2023 on behalf of her minor son M, now aged 13 years, of whom the appellant is
the biological father, notwithstanding an intervening Children's Court order
whereby the court 'hereby terminates the rights and responsibilities of the
[appellant ] in respect of the child [M]'.
2. This appeal engages the proper interpretation to be placed upon that order and
upon the statutory provision which purportedly empowered it, being section 28 of
the Children's Act 38 of 2005 (the Children's Act).1
Case management, condonation and the issue of appealability
3. The appeal underwent case management by the Court (Slingers J and Pangarker
AJ) prior to the hearing. As a result, the Centre for Child Law (CCL) was admitted
as amicus curiae on 20 May 2024. Slingers J brought the appeal to the attention
of the Office of the Family Advocate, invoking section 28(1 )(h) of the
Constitution ,2 and expressing concern that it was not clear what steps, if any
1 Section 28 of the Children's Act provides:
"28 Termination , extension, suspension or restriction of parental responsibilit ies 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.
(2) An application in terms of subsection (1) may be combined with an application in terms
of section 23 for the assignment of contact and care in respect of the child to the
applicant in terms of that section.
(3) An application for an order referred to in subsection (1) may be brought-
(a) by a co-holder of parental responsibilities and rights in respect of the child;
(b) by any other person having a sufficient interest in the care, protection, well-being
or development of the child;
(c) by the child, acting with leave of the court;
(d) in the child's interest by any other person, acting with leave of the court; or
(e) by a family advocate or the representative of any interested organ of state.
(4) When considering such application the court must take into account-
(a) the best interests of the child;
(b) the relationship between the child and the person whose parental responsibilities
and rights are being challenged ;
(c) the degree of commitment that the person has shown towards the child; and
(d) any other fact that should, in the opinion of the court, be taken into account."
2 Section 28(1) (h) of the Constitution provides that:
2
were taken to give effect to Section 10 of the Children's Act3 (which provides for
the voice of the child to be heard) before the Children's Court order terminating
the appellant's responsibilities was granted. Thereafter on 28 May 2024, the
Court requested Legal Aid South Africa to appoint a legal representative for the
child, and directed the Office of the Family Advocate to investigate and report on
whether a termination of the appellant's parental responsibility to contribute to
his maintenance as set out in Section 18(2) of the Children's Act 38 of 2005 (the
Children's Act) is in the best interests of the child. Ms Rene Carstens was
appointed as the child's legal representative, and the Office of the Family
Advocate duly undertook an investigation regarding the welfare of the child and
filed a detailed report. The Court is grateful to all the above persons for the careful
and thorough manner in which they undertook their tasks.
4. The CCL was directed to pay particular attention to the following, the answers to
which are subsumed in the body of this judgment:
4.1. What would the consequences be for the administration of justice and for
maintenance applicants in general where a biological parent of a minor
child (the father) successfully has his parental rights and responsibilities
terminated where a maintenance application in respect of the child is
pending?
4.2. To what extent was the Maintenance Magistrate allowed or authorised to
comment on the decision of the Children's Court, bearing in mind that the
"Every child has the right to have a legal practitioner assigned to the child by the state, and at
state expense, in civil proceedings affecting the child, if substantial justice would otherwise result;"
3 Section 10 of the Children's Act provides:
"10 Child participation
Every child that is of such an age, maturity and stage of developm ent as to be able to
participate in any matter concerning that child has the right to participate in an appropriate
way and views expressed by the child must be given due considera tion."
3
Maintenance Court is a creature of statute and has no power to review
either?
4.3. To what extent may the Court of Appeal address and consider the
Children's Court order bearing in mind that the latter Court's order is not
the subject of this appeal?
5. Throughout case management and thereafter in the adjudication of this appeal,
this Court has remained cognisant that an appeal against the maintenance
judgment was before it, not an appeal against or review of the Children's Court
judgment. Nonetheless , the appeal record included references to the
proceedings in the Children's Court and the resulting order: this appeared in an
affidavit sworn by the appellant on 27 January 2023, in correspondence
addressed by the appellant to the maintenance office during August 2023, in
written submissions made by the appellant and by the maintenance officer to the
maintenance court, in the learned magistrate 's contemporaneous notes during
the enquiry in terms of Section 16 of the Maintenance Act 99 of 1998 (the
Maintenance Act), in the order of Magistrate McKellar granted in the Children's
Court on 11 August 2023, in the maintenance judgment itself and in the
respondent's opposing affidavit to the appellant's condonation application
(referred to below), to which she annexed the appellant's affidavit in support of
his application to the Children's Court dated 27 January 2024. All of this material,
as with the remaining contents of the appeal record, has been taken into
consideration.
6. The appeal against the maintenance judgment was lodged out of time by a
month. The appellant applied for condonation. The respondent delivered an
opposing affidavit, which in essence set out protracted delays over many years
4
in obtaining satisfaction in maintenance proceedings, of which the delay in this
appeal hearing was the latest. Her frustration with the failings in the
administration of justice was understandable, and these are revisited in a
different context below. However, for purposes of deciding upon condonation,
the relevant period to consider is that between the date of the judgment under
appeal, and the date upon which the appeal was lodged.
7. The granting or refusal of condonation is a matter of judicial discretion. It involves
a value judgment by the court seized with a matter based on the facts of that
particular case.4
8. The appellant's default was partly due to the delay in obtaining a transcript of the
learned magistrate 's judgment , and partly due to his own hesitation when
deciding whether to take the magistrate 's order on appeal or on review. He did
not fully motivate why he enjoyed prospects of success on appeal, as he ought
to have done.5 Despite these unsatisfactory features, the Court considered that
it is in the interests of justice to condone his default and allow the appeal to
proceed: to do otherwise would cause further potential delay in determining the
parties' positions, to the prejudice of M and of the respondent. In addition, this
appeal raises issues that are of wider importance, and merit deliberation by the
High Court.
9. A further preliminary issue was to consider whether the learned magistrate 's
judgment is appealable. Her judgment dealt only with the point raised in limine
by the appellant at the hearing. The appellant framed the point as the absence
of locus standi on the part of the maintenance officer, who, after conducting the
4 Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC) at paragraph [35)
5 Ibid at paragraph [50]
And see Paf v Scf 2022 (6) SA 162 (SCA) at paragraph [15)
5
enquiry required of him in terms of section 6(1) of the Maintenance Act 99 of 1998
(the Maintenance Act) had recommended that the respondent's complaint be
referred for trial before the learned magistrate.
10. The appellant had contended that the magistrate could not entertain the
respondent's maintenance application as the Children's Court had terminated his
parental responsibilities and rights. In effect, his contention was that the
maintenance officer exceeded his powers by referring the matter to the
magistrate, and the magistrate exceeded her powers by hearing the matter.
11. Accordingly, the point in limine before the learned magistrate was one of
jurisdiction. The import of her judgment is that notwithstanding the order of the
Children's Court, she retained jurisdiction. If her judgment is overturned on
appeal, (absent any further appeal), the learned magistrate will enjoy no power
or jurisdiction to continue the maintenance proceedings on the merits. This
appeal is therefore potentially dispositive of the pending maintenance trial,6 and
the learned magistrate 's judgment on the point in limine is appealable.7
Factual background
12. The child, M, was conceived during 2010. The parties disagree on the nature of
their relationship. In his affidavit in the Children's Court, the appellant states that
the parties "were never in a relationship ". The respondent asserts that they had
"a fling for almost 2. 5 years and the last time I was with him was at 8 months
pregnant".
13. On 04 August 2011, M was born. At that time the respondent believed M was
the child of another man and accordingly did not notify the appellant.
6 Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532J to 533A
7 Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA) at paragraph [1]
6
Approximately a year after M's birth, the respondent discovered that M was not
the biological child of the "man ... [she] had thought". Realising her error she
notified the appellant of the existence of his son. According to the respondent ,
the appellant persistently denied paternity until the results of the paternity test
were known.
14. On or about 13 April 2013, the respondent instituted maintenance court
proceedings against the appellant out of the Simonstown Magistrate Court, which
were not finalised. At the first appearance on 13 May 2013, according to the
court's notes, the appellant 'does not confirm paternity so he requires DNA test.
He will pay for the tesf'. The case was postponed to 6 June 2013 for this purpose.
The court notes reflect that on 6 June 2013 "[the appellant] called yesterday to
advise he could not have money for the [paternity] test and requested a
postponement. Complainant [the respondent] moved for 09h00 on 24/6/2013 for
DNA. Defendant [the appellant] advised of the 24/06/2013 ". A subsequent court
note dated 24 July 2013 reflects that the appellant had called to advise he would
be away in Kimberley for 3 months for cricket, that he undertook to pay R500.00
pm for 3 months and "will continue with DNA when he comes back''.
15. The respondent averred, with reference to supporting bank statements that
during 2014 the appellant was paying an amount of R750.00 to R800.00 per
month, and she had no reason to believe he would stop doing so. However, she
had to 'redo the application ' because the maintenance court was not able to 'get
hold of him'.
16. New maintenance proceedings were instituted on 25 March 2021 under a new
case number, with the first set down date of 12 July 2021 for an 'Investigation /
Mediation session'. According to the respondent the maintenance court was
7
unable to locate the appellant. A further directive was issued by the maintenance
officer for 5 October 2021. Again, the appellant did not attend. The respondent
is aggrieved that the steps taken by the maintenance officer to trace the
appellant, as evidenced by the tracking report, were inadequate and based on
dated information. She holds the view that the maintenance court had the power
to ascertain correct information about his whereabouts , despite protection of
personal information imposed by law, and bearing in mind that as a (then)
professional sportsman the appellant's name regularly appeared in the media.
17. Ultimately , under circumstances not explained in the papers, the appellant
underwent a paternity test in November 2022 that confirmed he is M's biological
father. It appears from the record that the respondent bore the costs of that test
in the sum of R2 160,00.
18. Thereafter , on or about 6 January 2023, the respondent again instituted
maintenance court proceedings against the appellant out of the Wynberg
Magistrates Court. This time, service of the process8 upon the appellant at his
place of employment on 19 January 2023 was successful. The first appearance
before the maintenance officer was scheduled for 27 March 2023.
19. The respondent reported that the appellant paid an amount of R2000 on
14 April 2023 and a similar sum in May/June of 2023. During the course of the
maintenance proceedings (by which she must mean the mediation before the
maintenance officer) the appellant made an offer of maintenance which the
respondent declined as inadequate. She avers that the case could have been
concluded had she not been missing proof of certain expenses which she was
8 Directive by the Maintenanc e Officer in terms of Regulation 3(1) read with Section 44 and Section 6
of the Maintenance Act 99 of 1998
8
due to provide at the next appearance .
20. However, in the interim, only eight calendar days after the directive by the
maintenance officer of the Wynberg Maintenance Court was served on the
appellant, and on 27 January 2023, the appellant instituted an application to
terminate his "parental rights" out of the Wynberg Children's Court.
20.1. In support of his application to the Children's Court, the appellant alleged
under oath that he "had relations with [the respondent] while on [sic]
university 10+ years ago (2010). We were never in a relationship. We
move [sic] on with our lives. She got married, and we never had contact
since". Taking account of the records maintained in the moribund
maintenance application in the Simonstown Magistrate 's Court (referred
to above), and the evidence of maintenance payments made during 2014
and 2023, the latter statement about no contact was incorrect.
20.2. Also misleading is his averment under oath that " [The respondent]
contacted me in November 2023, demanding a paternity test of her child
and stating that I am the father. Test confirmed that I am the biological
father'. The Simonstown maintenance court records reveal that the
appellant, not the respondent , had insisted upon a paternity test at his
cost as early as 13 May 2013, yet the appellant had successfully evaded
submitting to the test (until November 2022, not 2023). He had also
escaped service of process to initiate maintenance proceedings until
January 2023. He had, however, made maintenance payments for a
limited period during 2014, and again in 2023 -facts he apparently failed
and omitted to disclose to the Children's Court.
20.3. The appellant further alleged that the respondent "made her intentions
9
clear that she does not want a relationship (platonic) with me or a parental
relationship between me and the child. The only reason for contacting
me was for financial gain as she was getting divorced and needed money.
I have no relationship with the child, was never in contact with the child
and never had responsibilities towards the child in any way or form. The
child was and is still raised by her and her husband, and calls the husband
dad. I've started a partnership with someone. I have no intention of
starting engagements with the mother or start ( sic) a relationship with the
child. The practicalities of the situation are not conducive for a
relationsh ip as the intent is driven on monetary gain. I've also applied for
an interdict against the mother and husband due to them sending
threatening messages and phone calls. Mother applied to maintenance
court in November. Case on the roll to see Magistrate on 27/03/2023 at
9am". (underlining inserted)
21. Notably, the appellant did not allege that he was without means to contribute to
M's maintenance . The underlined passages reveal that the appellant was
preoccupied with the financial impact of a maintenance order, and this motivated
his application to the Children's Court for an order to terminate his "parental
rights". Plainly, on his own version, he had not, in practice, been burdened with
any of the responsibilities of care, contact and guardianship, and no application
was required to liberate him in that regard. In making his application he and the
Children's Court took for granted that the appellant was a co-holder of parental
responsibilities and rights to establish his locus standi in terms of section 28(3)(a).
This assumption bears further scrutiny. I revert to it below.
22. The record of appeal contains no material indicating the respondent 's attitude to
the appellant's application to the Children's Court. However, the report of the
10
Family Counsellor records that the respondent did not oppose the proceedings
as she had no legal representation and was told that the Children's Court matter
does not affect the Maintenance Court matter. (The source of this advice was
not identified). She was, however, present during that hearing on 11 August 2023,
taking account of the court notes quoted below from which it appears that both
parties appeared in person i.e., without legal representation.
23. On 11 August 2023, the Children's Court, with knowledge that maintenance
proceedings were pending, handed down its order under case number 14/1 /4-
81/23. It reads: "On application by the father FCP with ID ... the court hereby
terminates the rights and responsibilities of the applicant in respect of the child
MG with ID ... ". (underlining inserted)
24. For purposes of this appeal it was both unnecessary and inappropriate to have
insight into the reasons for that order, or the record of the proceedings in the
Children's Court. In their oral and written submissions in this appeal, the
respondent , the Family Advocate and the amicus curiae all pointed out that the
Children's Court had not exercised any of its powers to appoint a legal
representative to the child under section 29 (6) of the Children's Act or to call for
a report by the Family Advocate , a social worker or other suitably qualified
person, under section 29 (5)(a), and as such, insufficient attention (if any) may
have been afforded to the best interests of the child, as required by section 28
(4)(a). Those deficits in the Children's Court proceedings, if they are such, may
well engage the attention of a court tasked with a review of or appeal against the
Children's Court order, should such be possible -to which I revert below. This
court on appeal, when undertaking the interpretation exercise required of it, can
and does take into account those (apparently overlooked) provisions in sections
28 and 29 of the Children's Act.
11
25. The order of the Children's Court was brought to the attention of the Maintenance
Officer who, on or about 20 September 2023, advanced reasons as to why the
"maintenance court has Jurisdiction to hear the matter". The matter was
thereafter referred to the maintenance court for argument.
26. On 4 October 2023, the Acting Additional Magistrate Horn handed down her
judgment and order dismissing the appellant's point in limine that the
maintenance officer does not have locus standi to hear the application of the
respondent [and/or the maintenance court does not have jurisdiction].
27. The appellant's application to the Children's Court occasioned multiple
postponements of the maintenance court proceedings. The Wynberg
Maintenance Court records reflect that after the initial enquiry held by the
maintenance office on 27 March 2023, at which both parties were present and
details of their respective means were recorded, the proceedings were
postponed:
27.1. to 12 May 2023, when the appellant was absent;
27 .2. on 12 May 2023 to 11 August 2023, to await the outcome of the Children's
Court proceedings scheduled, the court notes stating "Rem [remand] for
outcome of Children's Court matter 11.08.2023 ... (Parties must a/so
appear Children's Court at 9)";
27.3. from 11 August 2023, when both parties were present, to 18 August 2023,
when appellant was not present, resulting in a warrant for his arrest;
27.4. to 29 August 2023, when the appellant appeared, and the warrant of
arrest was cancelled;
27.5. to 13 September 2023, which date was then amended to accommodate
12
the maintenance officer to 20 September 2023, on which date the
appellant's point in limine was argued;
27.6. to 4 October 2023 when the learned magistrate delivered judgment on
the point in limine;
27.7. to 25 October 2023 for resumption on the merits (which was interrupted
by an approach by the appellant on 13 October 2023 to obtain the court
file, at which time the maintenance officer advised him how the appeal
process works and what he was required to do);
27.8. to 15 November 2023, as the appellant was intent on appealing and
allegedly was unaware of the need to file process in that regard;
27.9. to 1 December 2023, to afford the appellant the opportunity to obtain the
court transcript for purposes of this appeal;
27.10. to 11 January 2024, when the appellant reported that his legal team was
reviewing the documents , and the respondent expressed her
(understandable) frustration with the delays;
27.11. to 24 January 2024, to afford the appellant an opportunity to confirm
whether he was appealing the judgment (which he was permitted to do
by email); and
27.12. from 24 January 2024 (when the appellant's intention to appeal was
confirmed) to 28 February 2024.
28. No doubt, pending the resolution of this appeal, further postponements would
have been ordered by the learned magistrate. The history of respondent's
multiple attempts to obtain relief in the maintenance courts, and the
13
intervention therein occasioned by the Children's Court proceedings, bring to
mind the dicta of the Constitutional Court more than 20 years ago in
Bannatyne v Bannatyne9 that "Courts need to be alive to recalcitrant
maintenance defaulters who use legal processes to side-step the:r obligations
towards their children. The respondent appears to have utilized the
system to stall his maintenance obligations through the machinery of the Act.
It appears from the evidence of the CGE that this happens frequently in the
maintenance courts. The hardships experienced by maintenance
complainants need to be addressed and the proper implementation of the
provisions of the Act is a matter that calls for the urgent attention of the
Department of Justice."
29. The appellant's successful evasion of the machinery of the Maintenance Act
was compounded by his approach to the Children's Court, akin to forum
shopping. It is deeply unfortunate that the Children's Court unwittingly
became an agent assisting the appellant to sidestep his obligations.
The appellant's case
30. The appeal was mounted on the basis that the Children's Court had exercised its
powers in term of section 28 of the Children's Act and that the Children's Court
Order must be understood to have terminated all his parental responsibilities and
rights as set out in section 18(2) of the Children's Act, including the responsibility
in sub-section 18(2)(b) in regard to maintenance10 of the child.
9 Bannatyne v Bannatyne 2003 (2) SA 363 (CC) at para 32
10 Section 18 (1) and 18 (2) of the Children's Act provide:
"18 Parental responsibilities and rights
(1) A person may have either full or specific parental responsibilities and rights in respect
of a child.
(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;
14
31. The appellant's argument laid concerted emphasis on the fact that the Children's
Court order had not yet been set aside on appeal or review, and it was not before
this appeal court as such. The argument was further predicated on an
interpretation of section 28 of the Children's Act from the perspective of the
person (in this case a parent) who bears the parental responsibilities and rights.
32. The appellant submitted that the Children's Court Order states that the
appellant's "rights and responsibilities" are terminated. This term is not defined
in the order and, so it was submitted , one looks to the Children's Act to determine
their meaning. The appellant submitted that the Children's Act defines these
rights and responsibilities as including those listed in section 18(2) thereof. The
Children's Court's Order does not specify which rights and responsibilities were
terminated, nor were any conditions attached to that order. As such, it was
submitted that the only logical conclusion is that the Children's Court intended
that all of the appellant's rights and responsibilities would be terminated
unconditionally, including his right and responsibility to contribute to the minor
child's maintenance.
33. Based on this, the appellant submits that the effect of this order was to bring a
final end to any and all of his rights and responsibilities towards the minor child
M, including the appellant's right and responsibility to contribute to M's
maintenance. The argument was developed that the Children's Court had
decided, as it was empowered to, to terminate all of the appellant's rights and
responsibilities towards M. Neither that order, nor the Children's Act stipulates
that the appellant's maintenance obligations would persist following such
termination. Consequently, the appellant submitted , that obligation was also
(b) to maintain contact with the child;
(c) to act as guardian of the child; and
(d) to contribute to the maintenance of the child."
15
terminated, the maintenance officer does not have locus standi to conduct a
maintenance enquiry in terms of section 6 of the Maintenance Act, and the
learned magistrate Horn erred in finding otherwise in the maintenance court.
34. The appellant's reasoning is premised on the assumption that section 28(1 )(a)
can and must be interpreted as authorising the termination of the responsib ility
of maintenance. In my view the interpretation of section 28(1 )(a) requires rigorous
consideration before this conclusion can be drawn.
35. The appellant's grounds of appeal set out in the notice of appeal are as follows:
35.1. That the judgment of the Court a quo (the learned magistrate) is
conflicting. This ground was not explained in written or oral submissions
and no more need be said about it.
35.2. That the learned magistrate erred in finding and/or proceeding on the
basis that the appellant had the right and/or responsibility to contribute to
the minor child's maintenance. This was the foundation of the argument,
in turn based on the appellant's interpretation of the Children's Court
order, set out above, and analysed below.
35.3. That the learned magistrate erred in finding that there was no existing
order regulating the parties' maintenance obligations towards the minor
child. This ground assumes that the Children's Court can, and its order
did, regulate the parties' maintenance obligations. It is related to the
preceding ground of appeal, addressed below.
35.4. That the learned magistrate erred in finding that all three prerequisites for
a common law duty of support exist. Other than the appellant's reliance
upon his interpretation of the effect of the Children's Court order, this
16
ground was not explained in written or oral submissions. It is at odds with
the common cause fact that the appellant is M's biological father.
35.5. That the learned magistrate erred by reconsidering the appellant's
application for the termination of his parental rights and responsibilities
towards the minor child, in circumstances where it was not called upon to
do so, nor had the necessary jurisdiction to do so. In my view, this is a
mischaracterisation of the maintenance judgment. The application was
not reconsidered ; the import of the resulting order was interpreted with
reference to the statutory framework and through the prism of the
Constitution , as it is hereunder . The learned magistrate did not exceed
her own powers in doing so.
36. The appellant submitted that when a person with parental rights and
responsibilities seeks an alteration thereof, section 28(1 )(a) (read with section
29(3) of the Children's Act) presents that person and the Court with a choice
either to suspend those rights and responsibilities for a limited period or to
terminate them. The applicant and the Court also have a choice between the
suspension and/or termination of all or only some of those rights and
responsibilities. Reference was also made to section 29(3) of the Children's Act
that empowers the Court to attach conditions to any order it makes in terms
thereof, and to the fact that in coming to a decision on such an application, a
Court is obliged to consider various factors, including the best interests of the
child .11
37. The appellant submitted that had the legislature intended that a person's
maintenance rights and responsibi lities should always survive a termination order
11 Sections 28(4)(a) and 29(4) of the Children's Act.
17
in terms of section 28(1 )(a), it would have included a provision to that effect in
the Children's Act, yet it did not do so and instead, the decision regarding which
rights and responsibilities should be terminated and/or suspended , and which
should not, was left to the Court. It was submitted that this decision was
deliberate , as the Legislature did include a provision dealing specifically with
maintenance obligations in section 21 (2) of the Children's Act. That section, with
the preceding sub-section for its context, provides:
"21 Parental responsibilities and rights of unmarried fathers
(1) The biological father of a child who does not have parental
responsibilities and rights in respect of the child in terms of
section 20, acquires full parental responsibilities and rights in
respect of the child-
( a) if at the time of the child's birth he is living with the mother
in a permanent life-partnership ; or
(b) if he, regardless of whether he has lived or is living with
the mother-
(i) consents to be identified or successfully applies in
terms of section 26 to be identified as the child's
father or pays damages in terms of customary law;
(ii) contributes or has attempted in good faith to
contribute to the child's upbringing for a reasonable
period; and
(iii) contributes or has attempted in good faith to
contribute towards expenses in connection with the
maintenance of the child for a reasonable period.
(2) This section does not affect the duty of a father to contribute
towards the maintenance of the child."
38. Therefore , so the appellant submitted, had the legislature intended that a
termination order in terms of section 28(1 )(a) would not affect a party's
maintenance obligations, it would have included a provision to that effect in the
Children's Act.
18
Analysis
39. The aforegoing argument is not tenable. The import of section 21 (2) is that
regardless of whether or not a biological father acquires any parental
responsibilities and rights, he remains under a duty to contribute to the
maintenance of the child. This underscores the importance attached by the
legislature to the duty of maintenance, and undercuts the argument that it can
readily be terminated via a section 28 application . If it were indeed the
legislature 's intention to permit a person who has parental responsibilities and
rights to be able to terminate the duty to maintain their child by invoking
section 28 of the Children's Act, then an anomaly arises: on the appellant's
interpretation , the unmarried biological father who acquired parental
responsibilities and rights under section 21 (1) could apply under section 28 to
terminate all those rights and thereby extinguish the duty to maintain his child,
yet the unmarried biological father who did not ever acquire parental
responsibilities and rights could not so apply under section 28, and is destined12
to remain burdened by the duty to maintain by operation of section 21 (2). The
result is an arbitrary discrimination between different classes of unmarried
biological father. It is irrational. It could not reasonably be accepted to be the
intention of the legislature to so discriminate.
40. The appellant's interpretation suffers from the further flaws that insufficient regard
was given to the full statutory framework, and insufficient attention was afforded
to the meaning of 'parental responsibilities and rights'.
41. Significantly, the Children's Act places the word 'responsibilities ' ahead of the
12 Unless he could establish locus standi under sub-sections 28 (3) (b) or (d)
19
word 'rights' in this coupling of concepts,13 and both are qualified by the word
'parental'. The quartet of responsibilities and rights in section 18 of the Children's
Act -care, contact, maintenance and guardianship -has adults as its subject,
not children. The rights of children are not defined or limited by section 18 of the
Children's Act; the rights of children are located in the Constitution,14 in the
common law,15 in the Maintenance Act16 and in other specific sections of the
Children's Act.17
42. It has been observed that parental responsibilities and rights are really two sides
of the same coin.18 They are inextricably linked to each other. This follows from
the fact that the word 'rights' connotes the powers to do what is required to fulfil
parental responsibilities.
42.1. The responsibility of care19 for a child, encapsulating the child's housing,
13 The appellant consistently reversed this order in his written submissions -as summarised above.
The Children's Court order also reversed the word order.
14 Constitution, Section 28
15 See infra
16 Section 15
17 Sections 6, 10, 11, 12, 13, 14, 15(2)
18 GM v Kl 2015 (3) SA 62 (GJ) at paragraph (14);
SF v TD 2021 JDR 0847 (WCC) at paragraph [21).
19 The Children's Act definition in section 1 is:
'"care', in relation to a child, includes, where appropriate
(a) within available means, providing the child with-
(i) a suitable place to live;
(ii) living conditions that are conducive to the child's health, well-being and development ;
and
(iii) the necessary financial support;
(b) safeguarding and promoting the well-being of the child;
(c) protecting the child from maltreatment , abuse, neglect, degradation , discrimination ,
exploitation and any other physical, emotional or moral harm or hazards;
(d) respecting , protecting , promoting and securing the fulfilment of, and guarding against any
infringement of, the child's rights set out in the Bill of Rights and the principles set out in
Chapter 2 of this Act;
(e) guiding, directing and securing the child's education and upbringing , including religious
and cultural education and upbringing , in a manner appropriate to the child's age, maturity
and stage of development;
(f) guiding, advising and assisting the child in decisions to be taken by the child in a manner
appropriate to the child's age, maturity and stage of development ;
(g) guiding the behaviour of the child in a humane manner;
(h) maintaining a sound relationship with the child;
(i) accommodating any special needs that the child may have; and
20
nutrition, clothing and other needs, goes hand in hand with the power to
determine where the child resides and how those basic human needs of
the child are met.
42.2. The responsibility of contact20 encapsulates the obligation to maintain a
personal relationship with the child, and is coupled with the power to
communicate with the child where they live with someone else.
42.3. The responsibility of guardianship21 affords the corresponding powers,
among others, to administer the child's estate, and to consent to the
child's adoption, marriage while a minor, and departure from South Africa.
42.4. The responsibility of maintenance is coupled with the power (the right) to
seek on behalf of the child a contribution to the child's maintenance from
any other person who is under a legal duty to support the child.
"Maintenance", unlike other parental responsibilities and rights, is not
(j) generally, ensuring that the best interests of the child is the paramount concern in all
matters affecting the child;"
20 The Children's Act definition in section 1 is:
"'contact', in relation to a child, means-
(a) maintaining a personal relationship with the child; and
(b) if the child lives with someone else-
(i) communication on a regular basis with the child in person, including
(aa) visiting the child; or
(bb) being visited by the child; or
(ii) communication on a regular basis with the child in any other manner, including
(aa) through the post; or
(bb) by telephone or any other form of electronic communication ;"
21 The Children's Act definition of guardianship in section 1 read with section 18(3) is:
"(3) Subject to subsections ( 4) and (5), a parent or other person who acts as guardian of a child
must-
(a) administer and safeguard the child's property and property interests;
(b) assist or represent the child in administrative , contractual and other legal matters; or
(c) give or refuse any consent required by Jaw in respect of the child, including-
(i) consent to the child's marriage;
(ii) consent to the child's adoption;
(iii) consent to the child's departure or removal from the Republic;
(iv) consent to the child's application for a passport; and
(v) consent to the alienation or encumbrance of any immovable property of the child."
21
defined in the Children's Act, and thus retains its common-law meaning.22
The absence of a definition makes sense when one considers that from
the perspective of the person under a duty of support (which includes, but
is not limited to, those with parental responsibilities and rights),
maintenance is only an obligation ; that person holds no right in respect of
themselves , and is limited to exercising , on behalf of the child, the right
of the child to be financially supported.
43. Viewing parental responsibilities and rights as two sides of the same coin, Fisher
J held, in GM v Kl,23 "Thus on a purposive interpretation of s 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 ".
44. Subject to the qualification hereunder , I respectfully agree with the view of
Fisher J, as did Binns-Ward J in SF v TD.24 In the latter matter, the parent who
was the maintenance debtor in terms of a high court divorce order as varied,
applied to set aside a writ of execution on the basis that his maintenance
obligation was cancelled in terms of an order made by the Children's Court. This
required Binns-Ward J to consider and interpret the order of the Children's Court.
The matter differs from the present matter in that a maintenance order had come
into existence at the time of the parties' divorce, whereas none exists in relation
to the present appeal. The application was unsuccessful due to the Court finding
that on a proper construction of the Children's Court order, the magistrate had
not intended his order to deal with an issue that was not before the Children's
22 WW v EW 22011 (6) SA 59 (KZP) at para 14
23 At paragraph 14
24 At paragraphs 20 and 21
22
Court in the case that he was determining, that being limited to care and contact
of the minor children.25
45. For completeness, Binns-Ward J also considered the jurisdictional question
whether the magistrate exceeded his powers, assuming hypothetically that (as
contended by the father) the magistrate had made an order varying the extant
maintenance order.
46. I respectfully agree with Binns-Ward J's observations26 (underling inserted):
"The issue is not altogether free from difficulty as the ambit of the children's
courts' jurisdiction is not as clearly delineated by the Children's Act as
perhaps it should be. That much was pointed out more than 10 years ago
by a full court of the KwaZulu-Natal Division in Ex pa rte Sibisi 2011 (1) SA
192 (KZP). The full court exhorted the legislature to consider clarifying
amendments to the Act, but its suggestion seems to have fallen on deaf
ears. Sibisi was concerned with the question of guardianship, but the
jurisdiction of the children's courts in respect of questions of maintenance
is even less clear. Children's courts are empowered to deal with certain
child maintenance issues, but whether their remit is co-extensive with that
of the maintenance courts seems unlikely.
A maintenance order simpliciter is not listed in s 46 of the Children's Act
as one of the orders that a children's court may make."
47. Without intending any criticism of the findings of both Fisher J and Binns-Ward J,
which I consider to have been correctly made, the 'two sides of the same coin'
metaphor obfuscates one issue: in the instances of care, contact and
guardianship, the holder of parental responsibilities and rights is the subject of
that right/power and the subject of the concomitant duty/obligation -they sit on
25 At paragraph 13
26 At paragraphs 14 and 15, footnotes omitted
23
both sides of the coin, with the parent's right as heads and their responsibility as
tails of the metaphorical coin. However, in the instance of maintenance they hold
no right and have only an obligation. The right in question -to maintenance -is
exclusively that of the child. When a maintenance order in respect of a child is
granted by a divorce court or a maintenance court, the order serves to regulate
the distribution of the duty of support between those responsible for the child's
support. It does not serve to create a responsibility to support or maintain the
child, as that arises ex lege. If one were to extend the metaphor, maintenance is
a different coin: heads is the child's right, and tails is the parent's responsibility.
48. Counsel for the respondent, Mr Abduroaf, pointed to the fact that the Children's
Act provides for "Any person having an interest in the care, well-being or
development of a child' to apply to a High Court, a divorce court or the children's
court for an order granting the applicant, on such conditions as the court may
deem necessary, contact with or care of the child (section 23(1 )) and to apply to
the High Court or children's court for an order granting guardianship of the child
(section 24). However, these sections do not provide for application to be made
to have the responsibility of maintenance assigned to an applicant. The
legislature recognised , as it were, that the responsibility of maintenance is on a
different coin. It is an invariable consequence of being a parent.
49. For reasons that follow below, only in very circumscribed circumstances, which
do not apply to the facts of the present appeal, could an order be granted
terminating both the right (of the child) and the responsibility (of the parent).
50. It is now well established that the Children's Act changed the formerly prevailing
paradigm of 'parental authority' to one of parental responsibilities and rights.
However it did not repeal and replace the common law notion of 'parental
24
authority'. Importantly , whilst a parent's duty of maintenance could be seen as
part of their parental authority, it was not limited to it: the "maintenance duty exists
even if the parent has no parental authority over the child". 27
51. The basis or foundation of a parent's common-law duty to support (or put
differently , a child's common-law entitlement to maintenance) is -the same for
children born in and out of wedlock, and has been considered to be based out of
fairness and the affection of a blood relationship , from a sense of natural justice,
on a parental sense of obligation and on natural affinity due to the blood
connection.28
52. This common-law duty of support could only be terminated in very limited
instances, namely: the child becoming self-supporting or the child having died.29
The common-law simply made no provision for any other situation that would
entitle a party to terminate his/her maintenance obligation towards his/her child.
Even the child's attainment of the age of majority does not terminate the duty of
support (and the consequent corresponding entitlement to maintenance). 30
53. In terms of the (now repealed) Child Care Act 74 of 1983 ("Child Care Act"),
adoption comprised a single exception to this general rule that a parent's
common-law duty to support the child could not be terminated. The Child Care
Act provided that an adopted child is deemed, for all purposes, to be the
'legitimate' child of his or her adoptive parents, as if he or she had been born to
27 N van Schalkwyk 'Maintenance for Children' in CJ Davel (ed) Introduction to Child Law (2000) 41
2a Ibid at 41, 45 & 46;
and see ID Schaafer and 8 Clark 'Maintenance ' in Schafer Family Law Service at C3
29 Ibid at 57 & 58.
See also, and in respect of self-support , Bursey v Bursey and Another 1999 (3) SA 33 (SCA) at 38
C to D, and at G to H
There is a difference between the continuance of the maintenance duty and the continuance of the
maintenance order in which the maintenance duty is stipulated. The maintenance duty could
continue after the child has reached the age of majority.
30 Wessels v Wessels 2005 JDR 1410 (T) at para 4.1
25
those parents during the existence of a lawful marriage.31 All existing rights and
duties between the child and his or her pre-adoption parents were terminated.32
The Child Care Act was repealed by the Children's Act with effect from
1 April 2010. Section 242(1 )(a) of the Children's Act provides that "Except when
provided otherwise in the order or in a post-adoption agreement confirmed by the
court an adoption order terminates all parental responsibilities and rights any
person, including a parent, step-parent or partner in a domestic life partnership,
had in respect of the child immediately before the adoption", while section
242(2)(a) provides that "An adoption order confers full parental responsibilities
and rights in respect of the adopted child upon the adoptive parent. Under both
the Child Care Act and the Children's Act, provision was made for the obligation
to maintain the child to shift upon adoption to the adoptive parent. The right of
the child to be maintained remained and remains intact under both statutes.
54. In summary, and prior to the introduction of section 28 of the Children's Act, the
law made no provision for terminating the responsibility to discharge the duty of
support of one's children. The question arises: Is this indeed its effect?
The submissions by the CCL (amicus curiae)
55. The CCL correctly submitted that absent intervention by the legislature exhorted
by some judgments, one must have recourse to principles of statutory
interpretation to engage with the statutory regime as it presently exists, to
determine whether (or not) section 28(1) of the Children's Act bestows on a court
the power to terminate the common-law duty of support and the child's
concomitant right to maintenance. The process of statutory interpretation should
31 Section 20(2) of the Child Care Act 74 of 1983 ("Child Care Act").
32 Section 20(1) of the Child Care Act
26
be guided, among other things, by the following considerations:
55.1. First, the presumption that the legislature does not intend to alter the
existing law more than is required and/or necessary. 33•
55.2. Second, the court's duty to interpret statutes in such a way as to best give
effect to the spirit, purport and objects of the Bill of Rights.34 This is a
duty in respect of which "no court has a discretion "35 This duty is said to
have two sub-components:
55.2.1. The first requires that a court when confronted by two
interpretations -one of which is constitutionally valid and one of
which is not -must adopt the constitutionally valid
interpretation, provided that such an interpretation can
reasonably be attributed to the section.36
55.2.2. The second requires a court in instances where a provision is
reasonably capable of two interpretations -both of which are
constitutionally valid -to adopt the interpretation that "better"
promotes the spirit, purport, and objects of the Bill of Rights.37
55.3. Third, the principle of statutory interpretation that requires that all statutes
must be interpreted purposively.38
55.4. Fourth, that a statute should be read, and understood, in accordance with
33 Skyway Management v Telkom Suid Afrika 2001 (2) SA 780 (T) at 784H to I
34 Section 39(2) of the Constitution.
35 Phumelela Gaming & Leisure Ltd v Grundlingh 2007 (6) SA 350 (CC) at para 26 and 27.
36 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re
Hyundai Motors Distributors (Pty) Ltd v Smit N.O. 2001 (1) SA 545 (CC) at pars 22 and 23.
37 Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd 2009 (1) SA 337 (CC) at pars 46, 84 and 107.
38 Cool Ideas 1186 CC v Hubbard 2014 ( 4) SA 4 7 4 (CC); 2014 (8) BCLR 869 (CC) at paragraph [28).
27
the rules of the grammar of a language.39
55.5. Fifth, statutes must be interpreted and understood through the lens of
'best interests of the child' .40 In this regard, the Constitutional Court held
in S v M (Centre for Child Law Amicus Curiae)41 that: "While section 28
[of the Constitution] undoubtedly serves as a general guideline to the
courts, its normative force does not stop there. On the contrary, as this
court held in De Reuck, Sonderup and Fitzpatrick, section 28(2), read
with section 28(1), establishes a set of children's rights that the courts are
obliged to enforce ... The ambit of the provision is undoubtedly wide. The
comprehensive and emphatic language of section 28 indicates that Just
as law enforcement must always be gender-sensitive , so must it always
be child-sensitive; that statutes must be interpreted and the common law
developed in a manner which favours protecting and advancing the
interests of children and that courts must function in a manner which at
all times shows due respect for children's rights. "Sachs J approved the
view expressed by Professor Sloth-Nielsen42 that courts and
administrative authorities will be constitutionally bound to give
consideration to the effect their decisions will have on children's lives.
56. In Director of Public Prosecutions , Transvaal v Minister of Justice and
Constitutional Development43 the Constitutional Court similarly held that, where
possible, statutes must be "interpreted so as to exclude a construction that would
39 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012) 2 All SA 262 (SCA) at paragraph
[24) and para (18].
4o Sec. 28(2) of the Constitution.
41 S v M (Centre for Child Law Amicus Curiae) 2007 (12) BCLR 1312 (CC) at para 14 and 15.
42 Sloth-Nielsen 'Chicken soup or chainsaws : some implications of the constitutionalisation of
children's rights in South Africa' (1996) Acta Juridica 6 at 25.
43 Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development
2009 (4) SA 222 (CC); 2009 (7) BCLR 637 (CC) at para 84.
28
be inconsistent with the principle of the best interests of the child".
57. The CCL correctly submitted that the Children's Act did not repeal or replace the
common-law duty of support (which is reciprocal between parent and child), but
merely listed maintenance as a part of "parental responsibilities and rights". In
so doing it did not, however seek to include support for the child as a right that
may be inter alia terminated in terms of section 28(1 )44 of the Children's Act.
58. The CCL motivated its interpretation as follows:
58.1. First, the default position for fathers of children who are born out of
wedlock is that they do not automatically acquire parental responsibilities
and rights.45 Notwithstanding , they expressly retain the "duty" [as
opposed to responsibility] to maintain their child.46 The choice of the
language by the legislature is significant. The legislature clearly framed
the obligation as a "duty" rather than a "responsibility ". Despite the
language used in the list provided in section 18 of the Children's Act, the
legislature plainly had no intention to recast the common-law duty as a
responsibility capable of being terminated in terms of section 28 of the
Children's Act.
58.2. Second, the inclusion of maintenance as a responsibility for purposes of
section 28 of the Children's Act (purportedly susceptible of termination)
would have several (at best) unintended and/or irrational consequences
for the section as a whole. For example, section 28(1)(b) of the Children's
Act provides for extending or circumscribing the exercise of any parental
44 Quoted in footnote 1
45 Section 21 of the Children's Act, quoted above.
46 Section 21 (2) of the Children's Act.
29
responsibility and right. This would, notionally, vest a children's court with
the requisite jurisdiction to determine the issue of maintenance: the CCL
submitted that this clearly was not so intended, and is at odds with the
express provisions of the Maintenance Act 99 of 1998. As observed in
the judgments in Ex parte Sibisi and in SF v TO,47 the delineation of the
jurisdiction of the Children's Court remains problematic.
58.3. Third, if an application to terminate parental responsibilities and rights
terminated all obligations and/or duties of both the parent and child
(including the child's right to maintenance and the child's right to inherit)
then it would be expected that the legislature would have used similar
terminology in the sections governing the effects of an adoption, but it did
not. In section 242(1 )(c) of the Children's Act, the legislature expressly
provided for the child's rights to be extinguished, as follows: "Except when
provided otherwise in the order in a post adoption agreement confirmed
by the court an adoption order terminates all rights and responsibilities
the child had in respect of a person referred to in paragraph (a) or (b)
immediately before the adoption ". No such provision is made in
Section 28.
59. The CCL further submitted that any interpretation that Section 28 allows for the
termination of the duty of support would, moreover, do violence to several
constitutional rights and international law obligations. In particular:
59.1. It would impugn a child's right to have his or her best interests considered
of paramount importance.48 There can be no legitimate scenario in which
47 See infra
48 Section 28(2) of the Constitution and Section 9 of the Children's Act
30
the termination of the obligation to pay maintenance, where there is a
need, would ever be in a child's best interests. During argument, the
appellant's counsel was invited to describe any such scenario, and
conceded that she was unable to do so.
59.2. Termination of the duty of support would violate the obligations on the
government (the state) to create conditions to protect children and ensure
that their needs are adequately and satisfactorily met. The following
dictum of Sachs J in S v M,49 referring to section 28 of the Constitution,
is particularly apt: "Every child has his or her own dignity. If a child is to
be constitutionally imagined as an individual with a distinctive personality,
and not merely as a miniature adult waiting to reach full size, he or she
cannot be treated as a mere extension of his or her parents, umbilically
destined to sink or swim with them. The unusually comprehensive and
emancipatory character of section 28 presupposes that in our new
dispensation the sins and traumas of their fathers and mothers should not
be visited on their children. Individually and collectively all children have
the right to express themselves as independent social beings, to have
their own laughter as well as sorrow, to play, imagine and explore in their
own way, to themselves get to understand their bodies, minds and
emotions, and above all to learn as they grow how to make choices in the
wide social and moral world of adulthood. And foundational to the
enjoyment of the right to childhood is the promotion of the right as far as
possible to live in a secure and nurturing environment free from violence,
fear, want and avoidable trauma. No constitutional injunction can in and
49 S v M ( Centre for Child Law Amicus Curiae) supra at para 18, 19 & 20.
31
of itself isolate children from the shocks and perils of harsh family and
neighbourhood environments. What the law can do is create conditions
to protect children from the abuse and maximize opportunities for them
to lead productive and happy lives. Thus, even if the state cannot itself
repair disrupted family life, it can create positive conditions for repair to
take place, and diligently seek wherever possible to avoid conduct of its
agencies which may have the effect of placing children in perif'. In my
view, one such positive condition is the preservation of a system that
facilitates the recovery of maintenance for a child from all those that owe
the child a duty of support.
59.3. Termination of the duty of support would compromise the international
obligations imposed by the United Nations Convention on the Rights of
the Child to which South Africa is a party50, particularly article 27 which
provides that:
"1. States Parties recognize the right of every child to a standard of
living adequate for the child's physical, mental, spiritual, moral
and social development.
2. The parent(s) or others responsible for the child have the primary
responsibility to secure, within their abilities and financial
50 South Africa acceded to the United Nations Convention on the Rights of the Child on 16 June 1995.
The preamble to the Maintenance Act is instructive , in that it includes the following passage that
directly refers to and quotes Article 27 of the Convention (underlining inserted):
"AND WHEREAS the Republic of South Africa is committed to give high priority to the rights of
children, to their survival and to their protection and development as evidenced by its signing
of the World Declaration on the Survival, Protection and Development of Children, agreed to at
New York on 30 September 1990, and its accession on 16 June 1995 to the Convention on the
Rights of the Child, signed at New York on 20 November 1989;
AND WHEREAS Article 27 of the said Convention specifically requires States Parties to
recognise the right of every child to a standard of living which is adequate for the child's
physical. mental. spiritual. moral and social development and to take all appropriate measures
in order to secure the recovery of maintenance for the child from the parents or other persons
having financial responsibility for the child;"
32
capacities, the conditions of living necessary for the child's
development.
3. States Parties, in accordance with national conditions and within
their means, shall take appropriate measures to assist parents
and others responsible for the child to implement this right and
shall in case of need provide material assistance and support
programmes , particularly with regard to nutrition, clothing and
housing.
4. States Parties shall take all appropriate measures to secure the
recovery of maintenance for the child from the parents or other
persons having financial responsibility for the child, both within
the State Party and from abroad. In particular , where the person
having financial responsibility for the child lives in a State
different from that of the child, States Parties shall promote the
accession to international agreements or the conclusion of such
agreements , as well as the making of other appropriate
arrangements. " (underlining inserted).
60. The aforegoing submissions by the CCL are sound.
61. The relevant factors in statutory interpretation identified by the CCL, militate, so
it was submitted, against an interpretation that section 28(1) of the Children's Act
was intended to allow a parent to escape their obligation to maintain their child.
I agree.
61.1. The CCL's interpretation is supported by the presumption that the
legislature does not intend to alter the existing law -which imposes a
duty of support upon parents -more than is required and/or necessary.
61.2. It gives effect to the spirit, purport and objects of the Bill of Rights,
particularly the rights of children set out in section 28 of the Constitution.
61.2.1. The appellant's counsel submitted that an interpretation that
33
countenanced the termination of the responsibility of
maintenance was constitutionally valid because the court
deciding the section 28(1) application enjoys a discretion under
section 29(3) to "grant the application unconditionally or on such
conditions as it may determine , or may refuse the application,
but an application may be granted only if it is in the best interests
of the child".
61.2.2. The injunction to apply the best interests standard does not,
however, address the antecedent question whether an
interpretation that would have the effect of diminishing (or even
extinguishing ) a child's right to maintenance could ever be
constitutionally valid. I think not. The termination of a parent's
maintenance obligation towards a child will inevitably affect the
child's socio-economic well-being as fewer resources will be
available for the child's support. This will of course be a matter
of degree in each particular case, but the child will be affected
even if the parent with less means than the other is liberated
from their maintenance responsibil ity. As such, in practice, the
child's rights in terms of Section 28(1 )(b) and (c) of the
Constitution will be limited. This limitation will arise on a case
by case basis in the courts determining Section 28(1)
applications. Although the Children's Act is a law of general
application, no argument was advanced , with reference to
section 36 of the Constitution , why any child's rights should be
limited by a section 28(1) application (on the appellant's
interpretation of Section 28(1 )).
34
61.2.3. Compared with the appellant's interpretation, in my view, the
interpretation for which the CCL contends "better" promotes the
spirit, purport, and objects of the Bill of Rights. It is the
interpretation that is consistent with the State's obligations
under Article 27 of the United Nations Convention on the Rights
of the Child.
61.3. The CCL's interpretation causes no grammatical offence, and it enables
a sensible purpose51 to be attributed to section 28(1 )(a). It is congruent
with the imperative in section 9 of the Children's Act to attach paramount
importance to the child's best interests, and it is child-centred.
61.3.1. One can readily conceive of scenarios when a child's best
interests would be served by the suspension or termination of
the responsibil ities and rights of care and contact, as when the
person holding those responsibilities and rights has caused
harm to the child or poses a risk to the child's well-being.
Similarly, where that person has exercised the responsibilities
and rights of guardianship in a manner adverse to the child's
interests, for example, by maladministration of the child's estate,
a termination of that responsibility and right may be appropriate.
61.3.2. Sub-section 28(3) affords standing to a wide group of persons
to bring such an application, including a co-holder of parental
responsibilities and rights in respect of the child, any other
person having a sufficient interest in the care, protection, well
being or development of the child, the child or any other person
51 Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC), para 28
35
applying in the child's interest (acting with leave of the court)
and a family advocate or the representative of any interested
organ of state. The underlined wording frames the legislature 's
intention: the termination or suspension must serve the child,
not the holder of the parental responsibilities and rights sought
to be terminated or suspended. It is so that such holder enjoys
standing, to bring such an application, and to be the person who
'challenges'52 their own parental responsibilities and rights.
However, on a reading of section 28 as a whole, it is plain that
the purpose was not to afford such holder an opportunity to
relieve themselves of the burden of responsibility. The purpose
is to safeguard the child and advance the child's best interests.
62. I concur with the CCL's reasoning , as summarised and amplified above. To this,
I add that section 28 of the Children's Act should not be evaluated as if it exists
in its own silo. Due regard must be afforded to other statutory provisions that
impinge upon the issue at hand.
63. No attention has been given by the appellant to the provisions of the Maintenance
Act itself, and in particular , section 15 which provides (underlining inserted):
"15 Duty of parents to support their children
(1) Without derogating from the law relating to the liability of
persons to support children who are unable to support
themselves, a maintenance order for the maintenance of a child
is directed at the enforcement of the common law duty of the
child's parents to support that child, as the duty in question
exists at the time of the issue of the maintenance order and is
expected to continue.
52 As contemplated in Section 28(4)(b)
36
(2) The duty extends to such support as a child reasonably requires
for his or her proper living and upbringing , and includes the
provision of food, clothing, accommodation , medical care and
education.
(3)
(a) Without derogating from the law relating to the support of
children, the maintenance court shall, in determining the
amount to be paid as maintenance in respect of a child,
take into consideration -
(i) that the duty of supporting a child is an obligation
which the parents have incurred jointly;
(ii) that the parents' respective shares of such obligation
are apportioned between them according to their
respective means: and
(iii) that the duty exists, irrespective of whether a child is
born in or out of wedlock or is born of a first or
subsequent marriage.
(b) Any amount so determined shall be such amount as the
maintenance court may consider fair in all the
circumstances of the case.
( 4) As from the commencement of this Act, no provision of any law
to the effect that any obligation incurred by a parent in respect
of a child of a first marriage shall have priority over any
obligation incurred by that parent in respect of any other child
shall be of any force and effect."
64. The plain language of section 15 of the Maintenance Act codifies the common
law duty upon parents to support their children, and thereby entrenches the
concomitant common law right of the child to receive that support.
65. The codification of the parent's common law duty of support appears in a statute
(the Maintenance Act) specially directed at maintenance matters. The Children's
Act is a general statute pertaining to children which refers, among many other
things, to maintenance. When interpreting section 28 of the Children's Act, one
37
must call into aid the maxim in a passage from In re Smith's Estate (35 Ch.D.
589) which reads:
"When there is an Act of Parliament which deals in a special way with a
particular subject-matter and that is followed by a general Act of
Parliament which deals in a general way with the subject-matter of the
previous legislation, the Court ought not to hold that general words in such
a general Act of Parliament effect the repeal of the prior and special
legislation unless it can find some reference in the General Act to the prior
and special legislation."
66. Most of the Maintenance Act, including section 15, commenced on
26 November 1999. The Children's Act was published in the Government
Gazette on 19 June 2006. A limited number of sections, and some items in the
schedules, came into effect on 1 July 2007. Section 28 of the Children's Act came
into effect only on 1 April 2010, more than ten years after the Maintenance Act
took effect. The Children's Act did not, in express terms, amend or repeal53
section 15 of the Maintenance Act, or indeed any part thereof, and there is no
wording in the Children's Act from which one can infer such a repeal or
amendment.
67. The interpretation that the appellant seeks to place upon section 28 of the
Children's Act permits a termination of the parental responsibility of maintenance,
thereby extinguishing the parent's duty of support and its corresponding right.
That interpretation conflicts with the clear wording of Section 15 of the
Maintenance Act. The appellant's interpretati on amounts to an argument that the
former repealed the latter by implication. This interpretation is not sustainable.
The Supreme Court of Appeal explained as follows in Minister of Justice and
Constitutional Development and Others v Southern Africa Litigation Centre and
53 Section 313 read with Schedule 4
38
Others54 (underlining supplied):
"(R)epeal by implication is not favoured. An interpretation of apparently
conflicting statutory provisions which involves the implied repeal of the
earlier by the later ought not to be adopted unless it is inevitable. Any
reasonable construction which offers an escape from that is more likely to
be in consonance with the real intention of the Legislature. As it was put
in Wendywood Development (Pty) Ltd v Rieger and Another 1971 (3) SA
28(A) at 38:
It is necessary to bear in mind a well-known principle of statutory
construction , namely, that statutes must be read together and the later one
must not be so construed as to repeal the provisions of the earlier one,
unless the later statute expressly alters the provisions of the earlier one or
such alteration is a necessary inference from the terms of the later statute."
68. Applying this principle, section 28 of the Children's Act cannot be construed so
as to repeal section 15 of the Maintenance Act. It can and must be interpreted
so as to preserve the parent's duty and the child's right. That interpretation is
constitutionally compliant: it attaches paramount importance to the best interests
of the child55, and is consistent with the subsidiary legislation and the common
law which flesh out every child's right to family care, to basic nutrition, shelter,
basic health care services and social services.56
54 Minister of Justice and Constitutional Development and Others v Southern Africa Litigation Centre
and Others 2016 (3) SA 317 (SCA) 317; 2016 (4) BCLR 487; (2016] 2 All SA 365; [2016] ZASCA
17) at paragraph (118]
And see also Durban Corporation and Another v Rex 1946 NPD 109
and Kent, N. 0. v South African Railways and Another 1946 AD 398 at p 405
55 Section 28(2) of the Constitution;
Convention on the Rights of the Child (CRC) 1989
Section 9 of the Children's Act, which provides:
"9 Best interests of child paramount
In all matters concerning the care, protection and well-being of a child the standard that
the child's best interest is of paramount importance , must be applied."
56 Sections 28(1 )(b) and (c) of the Constitution
39
69. Ms Carstens, who appeared as M's legal representative, correctly submitted with
reference to the authorities, that Section 28(1 )(b) of the Constitution in defining
every child's right to family care or parental care has direct horizontal application:
the duties that those rights impose rest primarily on the parents and family and
pass to the state only if the child's parents or family fail(s) or are/is unable to care
for the child. She further submitted that sections 28(1 )(b) and (c) must be read
together, and the state is thus responsible for ensuring that there are legal
obligations to compel parents and the family to fulfil their responsibilities towards
children.57 She submitted with reference to S v M58 that section 28(1) read with
the best interest principle in section 28(2) of the Constitution required the law to
make the best possible effort to avoid where possible any breakdown of family or
parental care that may put children at risk. It is self-evident that when a child is
deprived of the benefit of a parent's resources , this may put the child at risk (of
inadequate nutrition, housing, health care, education).
70. Once it is accepted, as it must be, that section 28 of the Children's Act cannot be
construed so as to repeal section 15 of the Maintenance Act or the parent's
common law duty of support, them it follows that the Children's Court order
granted on 18 August 2023 must be interpreted as having left intact the
appellant's duty to support M. The termination of the appellant's parental
responsibilities and rights did not terminate his duty of support towards M, nor
can the Children's Court order be interpreted as having terminated M's right to
maintenance by both his parents.
71. In assessing the implications of the Children's Court order in the present appeal,
the Court is mindful that these proceedings relate to a child. As proclaimed in
57 Bannatyne v Bannatyne , supra, at para 28
58 S v M, supra, at para 20
40
AD v OW (Centre for Child Law as Amicus Curiae):59
"Child law is an area that abhors maximalist legal propositions that preclude
or diminish the possibilities of looking at and evaluating the specific
circumstances of the case. Unduly rigid adherence to technical matters,
such as who bears the onus of proof, should play a relatively diminished role;
the courts are essentially guarding the best interests of the child, not simply
settling a dispute between litigants". (underlining inserted)
72. To safeguard M's best interests, his right to be supported by both his parents
should be preserved until he is self-sufficient.
72.1. It is not acceptable to retort (as did the appellant) that M has another
parent (the respondent) under a duty to support him. If M was obliged to
suffice with the support of only one of his two parents, M will necessarily
be precluded from the benefits of the resources of his father (who was a
professional sportsman and is now employed by a major financial
institution)-the very resources which may enable him to enjoy more than
just basic health care, to advance his development by attending a better
school than his mother can afford from her limited resources, and to fulfil
his own potential by participating in sports and extra-mural activities and
undertaking tertiary education. It is inconceivable that any parent would
want to deny their child those advantages and opportunities, particularly
when it is within the parent's means to provide them.
72.2. It is also not an answer to say that M's mother (the respondent) has
married, and that her husband, as M's stepfather, has assumed
59 AD v OW (Centre for Child Law as Amicus Curiae) 2008 (3) SA 183 (CC) at para 55.
41
responsibility for M. First, this is disputed by the respondent. In any
event, the respondent's husband is under no legal duty to support M, and
he may provide or withhold support to M as he wishes, without fear of any
judicial oversight. It is not in M's best interests for his father's duty of
support (which is enforceable) to be abdicated in the hope that his
stepfather may or may not make up the shortfalls in M's support which
the respondent has struggled to meet for his entire lifetime.
73. With the aforegoing analysis in mind, the conclusion reached by Acting
Magistrate Horn is sound. As she aptly put it:
"Now taking into account the role of the courts upholding of the
constitutional rights of the child, how can the very institution that it created
to protect the rights of the child, terminate the right to claim maintenance.
Who then must maintain the child if there is no alternative source? The
respondent is employed and is financially capable of supporting this child.
How can it be in the child's best interest that the source of care, of support
be taken away from him? It is because of the constitutional rights that
there is a Maintenance Act, a maintenance court to enforce the rights
contained in the constitution [sic] for the protection of the children to give
the child a voice. It is for all these reasons that the court must now look
at, and employing the best interests of the child principle, I hereby find that
the maintenance officer does have locus standi to proceed with this
application. That is my finding."
7 4. The appeal against her judgment fails.
Alternative submissions by the amicus curiae
75. Because the Court rejects the appellant's contention that section 28(1) of the
Children's Act allows for the termination of the duty of support, it is unnecessary
to adopt the alternative approach mooted by the CCL, viz. to mero motu raise the
constitutionality of section 28 of the Children's Act.
42
76. The CCL raised a further alternative approach, arguing that the Children's Court
order could be found to be a nullity. The argument was advanced that the issue
of maintenance was already pending before the maintenance court (and it was
therefore /is pendens), that the Children's Court had failed to consider the aspects
identified in section 28( 4 )60 and section 2961 of the Children's Act and that the
appellant had no standing to apply for a termination of parental responsibilities
and rights under Section 28(1 )(a) because he is not a co-holder of parental
responsibilities and rights and has never, at least as is apparent from the record,
60 Sub-section 28(4) of the Children's Act provides (underlining inserted):
"(5) When considering such application the court must take into account
(a) the best interests of the child;
(b) the relationship between the child and the person whose parental responsibilities and
rights are being challenged;
(c) the degree of commitment that the person has shown towards the child; and
(d) any other fact that should, in the opinion of the court, be taken into account."
61 That section of the Children's Act provides (underlining inserted):
"29 Court proceedings
(1) An application in terms of section 22 (4) (b), 23, 24, 26 (1) (b) or 28 may be brought
before the High Court, a divorce court in a divorce matter or a children's court, as
the case may be, within whose area of jurisdiction the child concerned is ordinarily
resident.
(2) An application in terms of section 24 for guardianship of a child must contain the
reasons why the applicant is not applying for the adoption of the child.
(3) The court hearing an application contemplated in subsection (1) may grant the
application unconditionally or on such conditions as it may determine, or may refuse
the application , but an application may be granted only if it is in the best interests of
the child.
(4) When considering an application contemplated in subsection (1) the court must be
guided by the principles set out in Chapter 2 to the extent that those principles are
applicable to the matter before it.
(5) The court may for the purposes of the hearing order that-
{a) a report and recommendations of a family advocate. a social worker or other
suitably qualified person must be submitted to the court;
(b) a matter specified by the court must be investigated by a person designated
by the court;
(c) a person specified by the court must appear before it to give or produce
evidence; or
(d) the applicant or any party opposing the application must pay the costs of any
such investigation or appearance.
(6) The court may, subject to section 55-
(a) appoint a legal practitioner to represent the child at the court proceedings;
and
(b) order the parties to the proceedings , or any one of them, or the state if
substantial injustice would otherwise result, to pay the costs of such
representation.
(7) If it appears to a court in the course of any proceedings before it that a child involved
in or affected by those proceedings is in need of care and protection , the court must
order that the question whether the child is in need of care and protection be referred
to a designated social worker for investigation in terms of section 155 (2)."
43
sought to regularise his position in terms of section 26 of the Children's Act.
77. In view of the findings made above, it is not strictly necessary to adjudicate the
CCL's alternative approach , but for the sake of completeness, and due to this
Court's careful case management of this matter and the specific directions the
CCL was requested to address, its alternative argument merits discussion.
77.1. The /is alibi pendens point is predicated upon the Children's Court
enjoying concurrent jurisdiction with the Maintenance Court, which is
doubtful in my view, for reasons explicated above. It is not evident from
the appeal record whether the issue of concurrent jurisdiction and the
issue of /is alibi pendens were raised and/or considered by the Children's
Court. Having regard to the above analysis of the relevant statutory
provisions, to M's right to be supported by both parents, and the
imperative to afford paramount importance to his best interests, the
Children's Court ought to have so applied its mind.
77.2. The criticism that the Children's Court had failed to consider the aspects
identified in section 28(4) and section 29 of the Children's Act is an aspect
which this Court sought to remedy, in the exercise of its wide powers as
M's upper guardian and to meet its constitutional obligations , by granting
the case management orders of 20 May 2024 and 28 May 2024 referred
to above.
77.2.1. The case management of this appeal was directed not only at
the circumstances of the parties thereto, but also at the wider
ramifications of Section 28(1 )(a) orders, which have received
little attention to date, but which have the potential to affect
many children and holders of parental responsibilities and
44
rights, and consequently the administration of justice. For that
reason, the criticism is afforded attention in this judgment.
77.2.2. But for the Family Advocate's report to this Court and the
submissions made by the amicus curiae and M's own legal
representative, this Court would not have been in a position to
evaluate this criticism.
77.2.3. Affording the child a voice (where age appropriate) and/or their
own representation, and procuring the input of independent
parties such as the Family Advocate are salutary aides to the
court determining a section 28(1) application. Much as these
are to be deployed in the court's discretion, given the gravity of
the decision called for, one can conceive of few situations when
the court would dispense with such input. The appellant was
acting in his own cause in the Children's Court, not that of his
child M. In the circumstances, the matter before the Children's
Court was a case par excellence for calling into aide the
representations of other persons as contemplated in sections
29(5) and (6). The failure of the Children's Court to do so is an
egregious neglect of its duty to place the child first and to show
respect for M's rights, and is to be deprecated.
77.3. For reasons that follow, there is merit in the CCL's submissions that the
appellant had no standing in the Children's Court and that the resulting
order is a nullity.
77.3.1. As alluded to above, the Children's Court and the parties took
for granted that the appellant was/is a co-holder of parental
45
rights and responsibilities. As an unmarried father he would
have had to acquire such by satisfying the requirements in
section 21 (1) of the Children's Act (quoted above).
77.3.2. It has been a matter of debate whether the three requirements
of section 21 (1 )(b) are conjunctive , or whether it suffices to meet
only one or two to acquire parental rights and responsibilities. In
this Court, Desai J held in RRS v DAL 62, without any detailed
textual interpretation, that they are conjunctive , so all three
requirements must be met to qualify for automatic parental
responsibility. However, Fisher J adjudicated the matter of
GM v K/63 on the basis that fulfilment of only one requirement
sufficed (in that case the requirement in section 21(1 )(b)(i) was
met). In KLVC v S0164, the SCA declined to resolve the debate,
and instead upheld the finding of the court a quo that it was
unnecessary to make a determination on the correct
interpretation of section 21 (1 )(b) because on the facts of that
case and even if the matters referred to in sections 21 (1 )(b)(i)
to (iii) were self-standing and distinct requirements, all had been
met. The SCA held that determining whether or not an
unmarried father has met the requirements ins 21(1)(b) is an
entirely factual enquiry. The SCA approved the reasoning that
a consideration of sections 21 (1 )(b)(ii) and (iii) required that a
court consider the facts, exercise a value judgment and come
62 RRS v DAL (22994/2010) (2010] ZAWCHC 618 (10 December 2010)
63 Supra at para 3
64 KLVC v SDI (20334/2014) [2014] ZASCA 222; (2015] 1 All SA 532 (SCA) (12 December 2014) at
para 10 to 14
46
to a conclusion, and that in doing so a court would have to
consider a wide range of circumstances because the language
used in those subsections was deliberately broad permitting of
a range of considerations on which minds may differ and the
exercise of a value judgment may determine a different outcome
and, such as an exercise does not equate to a judicial
discretion.
77.3.3. I respectfully agree with the approach and reasoning in Marima
v Lesele65. Noting that in KL VC v SOI the SCA had left the
debate open, Movshovich AJ carefully analysed Section
21 (1 )(b) as follows:
"17. In my view, the Act is clear that the requirements are
cumulative ....
18. The requirements set forth in sections 21 (1 )(b)(i), (ii)
and (iii) are separated by the conjunction "and". In ordinary
parlance, that denotes cumulative or conjunctive criteria, and is
to be juxtaposed with the disjunctive "or". It is also noteworthy
that Parliament used "or" in the immediately preceding section
21(1)(a), to emphasise that sections 21(1)(a) and 21(1)(b) were
alternatives. The lawgiver was thus, in my view, well aware of
the distinction between those conjunctions and purposely chose
to use "and" in section 21(1)(b). That choice should ordinarily,
and in the absence of absurdity, unreasonableness ,
inconsistency or injustice, be given effect and it is not open to
the Court simply to substitute "and" with "or".
19. No such absurdity, unreasonableness , inconsistency ,
injustice or other incongruity results in this case. Subsections (i)
to (iii) of section 21 (1 )(b) can operate without any difficulty in
tandem; the factors they delineate are certainly not mutually
exclusive. This is reinforced by the fact that the cumulative effect
of those factors is akin to the legal effect of a relationship such
as marriage and permanent life-partnership , being the
alternative qualifying criteria for parental rights and
65 Marima v Lesele (1065/2019) (2022) ZAGPJHC 380 (6 June 2022) at para 17 to 19 (footnotes
omitted)
47
responsibilities set out in sections 20 and 21(1)(a) of the Act. It
would be a natural consequence of those relationships that the
parents in such relationships would have to contribute to a child's
upbringing , care and expenses at least for the duration of the
relationship but would often have duties of _support after the
relationship terminates. "
77.3.4. The appellant plainly did not acquire parental responsibilities
and rights in terms of section 21 (1 )(a), because at the time of
the M's birth he was not living with the respondent in a
permanent life-partnership.
77.3.5. As for the three factors set out in set out in Section 21 (1 )(b ), the
appellant did not consent to be identified or successfully apply
to be identified as M's father. To the contrary he placed paternity
in dispute and succeeded in evading a resolution of M's
paternity until November 2022. On his own version, he has not
contributed to M's upbringing at all. He has made only
intermittent contributions to M's maintenance expenses in 2014
and in 2023. Even if the appellant's erratic contributions to M's
maintenance are viewed in his favour, he has failed to meet the
other two requirements in Section 21 (1 )(b ). It follows that he did
not acquire parental responsibilities and rights in terms of
section 21 (1 )(b ).
77.3.6. The appellant was not a co-holder of parental responsibilities
and rights as at January 2023 when he brought his application
under section 28(1 ). In his statement to the Children's Court,
quoted above, the appellant professed to have no interest in M's
care, protection, well-being or development. It is not apparent
48
from the Children's Court order that leave was sought or granted
to the appellant to bring his application. It follows that the
appellant had no standing, as contemplated in sub-sections
28(3)(a), (b) or (e) to seek the relief he was granted.
77.3. 7. Absent the appellant 's standing, the Children's Court had no
jurisdiction to adjudicate the appellant's application. Absent its
jurisdiction, the resulting Children's Court order is a nullity66. The
learned magistrate in the Maintenance Court was entitled to
disregard it.
78. Accordingly , on the alternative basis advanced by the CCL also, the appeal must
fail.
M's future
79. This Court on appeal had the benefit of the investigation and report of the Family
Advocate , Adv J Gerber, supported by a report by the Family Counsellor
Manager, Mrs T Buttress. An alternative vision for M's future family life was
sketched in their reports.
80. The reports noted the parties' history and the appellant's feelings of distrust but
remarked that it appears that the respondent has not negatively influenced M
against the appellant, and that M idolises him to some extent. M has met the
appellant only once (this appears to be at the court appearance related to the
2022 paternity test). Neither party raised concerns regarding the other's ability to
care for M, and both have the capacity to cater for his needs. No reason was
66 Master of the High Court Northern Gauteng High Court, Pretoria v Mota/a NO 2012 (3) SA 325 (SCA)
at paragraph [11] to (13]
See also MN de Beer 'Invalid Court Orders' (2019) 9 Constitutional Court Review 283 at 288 to 289
49
discerned why appellant should not have contact with M. Adv Gerber weighed
up the reluctance shown by the appellant to exercise contact with M, with M's
views. Consideration was given to the possibility that if M is prepared for contact,
the appellant may not remain committed to it. Without diminishing the positive
relationship between M and his stepfather, Adv Gerber concluded that at the very
least M should have the opportunity to experience the care, love and support of
a father.
81. Mrs Buttress' report recorded that M is aware of his father's success as a
professional sportsman , and had described him as 'a good guy'. He expressed
that he would want to see the appellant again but if he could not see him he would
accept it. Attached to her report were letters she had asked M to write to his
mother and his father, as well as a letter she requested the respondent to address
to the appellant setting out her proposals regarding the appellant's contribution
to the maintenance of and his contact with M.
81.1. To the respondent, his mother, M wrote" I love when you take time from
work to come to my soccer practice and matches. That's why I love you."
81.2. His poignant letter to the appellant read "Hello Dad, I know we haven't
got the chance to meet each other but I would love to get to know you
better and see what your (sic) like."
81.3. The respondent 's letter to the appellant set out two different options for a
maintenance structure. She expressed her concern to provide for M's
schooling and to make provision for him to attend university, and
proposed a weekend contact schedule that would involve the appellant in
M's soccer practices and matches. At face value, these proposals are
reasonable. However, the report does not indicate that the appellant
50
responded to the respondent 's proposals.
82. Operating on the mistaken premise that the appellant was/is a holder of parental
responsibilities and rights, the Family Advocate and the Family Counsellor do not
recommend that they be terminated. Instead they recommended, among other
things, that the parties (continue to) be co-holders of such responsibilities and
rights, with M remaining in the respondent's care and residence, commencing
therapy to prepare him for contact with the appellant and to support him with
issues arising from the development of their relationship, and enjoying phased in
contact with the appellant. The appellant would also have therapy to assist with
unresolved issues between the parties. Co-parenting sessions for the parties
were also advised. Quite correctly, the appellant's obligation to maintain M, was
taken for granted with a recommendation that the parties agree on sharing M's
expenses according to their respective means.
83. These recommendations may derive from an overly sanguine view of the
appellant's capacity to commit to parenting responsibilities, but the possibility of
a consensual resolution cannot yet be excluded. The appellant had indicated in
consultation with Mrs Buttress that if a proposal was provided he would give it
consideration, and that he does not shy away from his responsibilities. The
respondent appears receptive to concluding a parenting agreement that would
afford some parental responsibilities and rights to the appellant, which can
competently be done in terms of section 22 of the Children's Act67.
67 22 Parental responsibilities and rights agreements
(1) Subject to subsection (2), the mother of a child or other person who has parental responsibilities
and rights in respect of a child may enter into an agreement providing for the acquisition of such
parental responsibilities and rights in respect of the child as are set out in the agreement , with-
(a) the biological father of a child who does not have parental responsibilities and rights in respect
of the child in terms of either section 20 or 21 or by court order;
(3) A parental responsibilities and rights agreement must be in the prescribed format and contain the
prescribed particulars.
51
84. The investigation and the consultations held with the parties and with M have laid
the groundwork for the appellant to come to terms with his parental duties, and
to assume a more significant role in M's life -which can only serve to enrich the
appellant's own life. The work done by the Office of the Family Advocate is a firm
foundation for continued mediation between the appellant and the respondent for
purposes of arriving at a parenting agreement that serves M's best interests. In
my view it would be premature for this Court to order the conferral of parental
responsibilities and rights as recommended by the Family Advocate without
further mediation with a view to arriving at an agreement between the parties.
85. I concur with the view articulate by Movshovich AJ in Marima v Lesele68 when
motivating his order that the parties therein undergo mediation (underlining
inserted):
"The Court should, as far as possible, in matters involving children, seek out all
relevant and accurate information within a reasonable time to place it in a position
to do justice to its role as the upper guardian of minors and to vindicate and give
effect to the best interests of children. It must also take care to ensure that the
proceedings do not simply proceed in the usual adversarial fashion, but rather, if
appropriate, incorporate opportunities for parties to conciliate, professional
mediation assistance. professional reports by family advocates. family
counsellors and others, and structured orders to ensure that the parties disclose
all relevant information to court and report on their progress in following extra
curial resolution .... Should any areas of disagreement still subsist by the end of
the mediation, those should be clearly identified by the parties, with the
assistance of the professional, and then presented to Court with supporting
documentary or witness evidence and the parties' contentions. The attainment
( 4) Subject to subsection (6), a parental responsibilities and rights agreement takes effect only if
(a) registered with the family advocate; or
(b) made an order of the High Court, a divorce court in a divorce matter or the children's court on
application by the parties to the agreement.
(5) Before registering a parental responsibi lities and rights agreement or before making a parental
responsib ilities and rights agreement an order of court, the family advocate or the court concerned
must be satisfied that the parental responsibilities and rights agreement is in the best interests of the
child.
68 Supra at para 12 to 15
52
of the objectives in the Act may require the Court in adjudicating such a dispute
to call for further information or oral evidence. Proceedings concerning children's
rights and parents' rights and responsibilities under the Act cannot and should
not neatly be compartmentalised into motion and trial processes. The unique role
of the court in such proceedings renders them quintessentially sui generis, where
flexibility of procedure and practical iustice must prevail to reach an accurate,
iust and expeditious outcome. "
86. Movshovich AJ was invoking a mandatory mediation possible under section 21
of the Children's Act. That does not apply to the present matter. However, I
consider that the guiding principle in Section 6( 4) of the Act69, which resonates
with the underlined dicta above, affords this Court the power, and indeed, the
duty, to direct the parties to attend further mediation with the Family Advocate, in
accordance with the order and structured timetable set out below. The purpose
is to obviate any need for the parties to return to contested court proceedings in
the Maintenance Court, or in this Court. The parties remain free to secure
independent advice from their respective legal representatives on the terms of
any mediated agreement.
87. The Constitutional Court has observed in SS v VVS 70, a matter concerning a
dispute about the payment of a maintenance obligation: " ... There is little doubt
that the payment of maintenance is an important factor in the ability of a custodian
parent to provide for the needs and interests of a minor child. Those needs and
interests are, however, best served when a child is able to enjoy the recognition
of its parents and the love and care that is almost symptomatic of being a
parent. When that is missing, one can only speculate about the manner in which
69 (4) In any matter concerning a child-
(a) an approach which is conducive to conciliation and problem-solving should be followed and a
confrontational approach should be avoided; and
(b) a delay in any action or decision to be taken must be avoided as far as possible.
7o SS v VVS (CCT247/16) [2018] ZACC 5; 2018 (6) BCLR 671 (CC) (1 March 2018) at para 42 & 43
53
it redounds on the wellbeing of a young child." The Constitutional Court recorded
its dismay about the father's insistence, some seven years after the parties'
divorce, that the child undergo a (further) paternity test, and his reluctance to
recognise the child as his own, then observed " ... Impressive as its powers are,
no court can direct a parent to love and recognise a child, critical as that may be
to the full development of a child. What we can do and are enjoined to do, is to
point out that every child is deserving of the love and care that is necessary for
their development and that the duty to provide that rests primarily on the parents
of the child. We can only hope that in the young life of the minor child whose
interest is the subject of this litigation, that that transpires in the fullness of time."
88. The orders that follow hereunder are directed, in M's best interests, to that end.
89. It is ordered that:
89.1. The appeal is dismissed with costs.
89.2. The appellant and respondent are directed forthwith jointly to approach
the Family Advocate's office for mediation to assist them in the conclusion
of a parental responsibilities and rights agreement between the parties
as contemplated in section 22 (1) (a) and section 22 (3) of the Children's
Act, 2005.
89.3. The mediation shall take place without delay and the mediation process
shall be completed by no later than 28 February 2025. If, with the
assistance of their respective legal representatives, the parties reach
agreement before consulting the Family Advocate, they must promptly
provide a copy of their agreement to the Family Advocate for purposes of
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its report to the Court contemplated below.
89.4. The parties shall use all reasonable endeavours to reach agreement on
all areas of dispute, particularly contact between Mand the appellant, and
his contributions to retrospective and future maintenance for M.
89.5. By no later than 10 days after the finalisation of the mediation or by 31
January 2025, whichever is the earlier, the parties shall deliver to the
child's representative , Ms Rene Carstens , and to this Court the duly
executed parenting agreement , together with the Family Advocate 's
report thereon, whereafter , the Court, may if so satisfied, make it an order
of this Court under sections 22 (4) (b) and 22 (5) of the Children's Act,
2005.
89.6. The parties are directed to furnish a copy of this judgment forthwith to
Acting Additional Magistrate Horn in the Wynberg Magistrate's Court.
89.7. If the parties do not reach agreement by 28 February 2025 on the
appellant's contributions to maintenance for M, they are directed to notify
the maintenance officer in the Wynberg Maintenance Court immediately
and to request the earliest available date for the resumption of the
maintenance proceedings in that Court.
ORDON-TURNER AJ
I agree, and it is so ordered.
NDITA J
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