The acquisition of and subsequent judicial interference with parental responsibilities and rights of unmarried parents in terms of the ๐๐ฉ๐ช๐ญ๐ฅ๐ณ๐ฆ๐ฏโ๐ด ๐๐ค๐ต 38 OF 2005: lessons from case law, selected analogous divorce law and english law
| dc.contributor.advisor | Smith, B. S. | en_ZA |
| dc.contributor.author | Somi, Aphiwe | en_ZA |
| dc.date.accessioned | 2024-07-19T13:50:10Z | |
| dc.date.available | 2024-07-19T13:50:10Z | |
| dc.date.issued | 2023 | en_ZA |
| dc.description | Dissertation (LL.M.(Private Law))--University of the Free State, 2023 | en_ZA |
| dc.description.abstract | Heaton and Krugerยน provide the following convenient starting point for this study when they state that: โInternationally, the focus of the private-law rules regarding the parent-child relationship has increasingly shifted from the rights and powers of parents towards the rights and entitlements of children. In addition, international human-rights instruments and constitutional provisions have conferred specific rights on children. The emphasis on the rights of children is [also] evident in [South African] law.โ ๐๐ข๐ญ๐ช๐ต๐ป ๐ท ๐๐ข๐ญ๐ช๐ต๐ปยฒ affirms that in South Africa, the common-law position was that a married father was the dominant parent from a legal point of view because, although he shared custody with the mother, his rights were superior, especially as only he exercised guardianship over his child(ren) as a core component of what was then known as โparental authorityโ.ยณ Mothers, however, steadily gained increased legal recognition as parents, especially after promulgating the ๐๐ข๐ต๐ณ๐ช๐ฎ๐ฐ๐ฏ๐ช๐ข๐ญ ๐๐ง๐ง๐ข๐ช๐ณ๐ด ๐๐ค๐ต 37 of 1953 and the ๐๐ถ๐ข๐ณ๐ฅ๐ช๐ข๐ฏ๐ด๐ฉ๐ช๐ฑ Act 192 of 1993.โด Crucially, at least as from 1948, the concept of โthe best interests of the childโ became the golden rule in matters relating to childrenโต following the judgment of the Appellate Division (the highest court in South Africa at the time), in ๐๐ญ๐ฆ๐ต๐ค๐ฉ๐ฆ๐ณ ๐ท ๐๐ญ๐ฆ๐ต๐ค๐ฉ๐ฆ๐ณ.โถ Building on this, our common law has always recognised the High Court as the upper guardian of all minors within its jurisdiction,โท and thus permits the court to interfere with โparental responsibilities and rightsโ (that has replaced the concept of โparental authorityโ), if the best interests of a child require doing so.โธ This power is reinforced by certain statutes, as will be discussed below. The dawning of democracy in South Africa greatly facilitated the shift to a โchild-centred approachโ,โน as indicated by the extract from Heaton and Kruger quoted above. Section 28 of the ๐๐ฐ๐ฏ๐ด๐ต๐ช๐ต๐ถ๐ต๐ช๐ฐ๐ฏ ๐ฐ๐ง ๐ต๐ฉ๐ฆ ๐๐ฆ๐ฑ๐ถ๐ฃ๐ญ๐ช๐ค ๐ฐ๐ง ๐๐ฐ๐ถ๐ต๐ฉ ๐๐ง๐ณ๐ช๐ค๐ข 1996 (after this โthe Constitutionโ) specifically deals with the fundamental constitutional rights of children. As Sachs J stated in S v M (๐๐ฆ๐ฏ๐ต๐ณ๐ฆ ๐ง๐ฐ๐ณ ๐๐ฉ๐ช๐ญ๐ฅ ๐๐ข๐ธ ๐ข๐ด ๐๐ฎ๐ช๐ค๐ถ๐ด ๐๐ถ๐ณ๐ช๐ข๐ฆ),ยนยบ โ[s]ection 28(1) provides for a list of enforceable substantive rights that go well beyond anything catered for by the common law and statute in the pre-democratic era.โ However, this list is not exhaustive.ยนยน Furthermore, as Boezaart states, a โplethora of lawsโ have been passed over the last two decades that govern various aspects of the lives of children. This was an attempt to improve domestic law in such a way that it is aligned with the ๐๐ฐ๐ฏ๐ด๐ต๐ช๐ต๐ถ๐ต๐ช๐ฐ๐ฏ and the international legal framework and to recognise the rights of children that may be enforced against parents, but also against the State.ยนยฒ One of the most important of these is the ๐๐ฉ๐ช๐ญ๐ฅ๐ณ๐ฆ๐ฏโ๐ด ๐๐ค๐ตยนยณ which was enacted (inter alia) to give effect to the constitutional rights of childrenยนโด and will feature throughout this study, particularly where the provisions or fundamental principles of this Act have been relied on by our courts to recognise, limit, terminate or broaden parental responsibilities and rights. The ๐๐ฉ๐ช๐ญ๐ฅ๐ณ๐ฆ๐ฏโ๐ด ๐๐ค๐ต effectively codifies the South African law of parent and child.ยนโต As such, this study focuses on the acquisition of parental responsibilities and rights by unmarried parents and the role of the judiciary in interfering with the same in terms of sections 28, 29 and 34(5) of the ๐๐ฉ๐ช๐ญ๐ฅ๐ณ๐ฆ๐ฏโ๐ด ๐๐ค๐ต and against the backdrop of the constitutional rights accorded to both children and their parents. While judicial interference will primarily be analysed in the specific context of unmarried parents, the fact that there is still relatively little case law dealing with such parents requires the study to draw on case law involving divorcing (or divorced) parents in which these provisions have featured. Having thus established the key legal principles regarding the application of these provisions, the study will identify certain lessons that can be learned when future courts are required to deal with the possible awarding, delineation, restriction or termination of unmarried parents' parental responsibilities and rights. In this regard, leading South African case law involving the possibility of awarding shared or joint care during or after divorce proceedings, as well as the potential restriction of separated parentsโ rights of contact based on their sexual orientation, will be considered. Furthermore, because this issue has featured in English law (while there is only one such case in South Africa), the study will seek to determine whether South African courts can benefit from case law in that jurisdiction involving the outright termination of the parental responsibilities and rights of unmarried parents. | en_ZA |
| dc.identifier.uri | http://hdl.handle.net/11660/12678 | |
| dc.language.iso | en | |
| dc.publisher | University of the Free State | en_ZA |
| dc.rights.holder | University of the Free State | en_ZA |
| dc.title | The acquisition of and subsequent judicial interference with parental responsibilities and rights of unmarried parents in terms of the ๐๐ฉ๐ช๐ญ๐ฅ๐ณ๐ฆ๐ฏโ๐ด ๐๐ค๐ต 38 OF 2005: lessons from case law, selected analogous divorce law and english law | en_ZA |
| dc.type | Dissertation |