Smith, B. S.Somi, Aphiwe2024-07-192024-07-192023http://hdl.handle.net/11660/12678Dissertation (LL.M.(Private Law))--University of the Free State, 2023Heaton and Kruger¹ provide the following convenient starting point for this study when they state that: “Internationally, 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.” 𝘊𝘢𝘭𝘪𝘵𝘻 𝘷 𝘊𝘢𝘭𝘪𝘵𝘻² 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 “parental authority”.³ Mothers, however, steadily gained increased legal recognition as parents, especially after promulgating the 𝘔𝘢𝘵𝘳𝘪𝘮𝘰𝘯𝘪𝘢𝘭 𝘈𝘧𝘧𝘢𝘪𝘳𝘴 𝘈𝘤𝘵 37 of 1953 and the 𝘎𝘶𝘢𝘳𝘥𝘪𝘢𝘯𝘴𝘩𝘪𝘱 Act 192 of 1993.⁴ Crucially, at least as from 1948, the concept of “the best interests of the child” became the golden rule in matters relating to children⁵ following the judgment of the Appellate Division (the highest court in South Africa at the time), in 𝘍𝘭𝘦𝘵𝘤𝘩𝘦𝘳 𝘷 𝘍𝘭𝘦𝘵𝘤𝘩𝘦𝘳.⁶ Building on this, our common law has always recognised the High Court as the upper guardian of all minors within its jurisdiction,⁷ and thus permits the court to interfere with “parental responsibilities and rights” (that has replaced the concept of “parental authority”), if the best interests of a child require doing so.⁸ 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 “child-centred approach”,⁹ as indicated by the extract from Heaton and Kruger quoted above. Section 28 of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 𝘰𝘧 𝘵𝘩𝘦 𝘙𝘦𝘱𝘶𝘣𝘭𝘪𝘤 𝘰𝘧 𝘚𝘰𝘶𝘵𝘩 𝘈𝘧𝘳𝘪𝘤𝘢 1996 (after this “the Constitution”) specifically deals with the fundamental constitutional rights of children. As Sachs J stated in S v M (𝘊𝘦𝘯𝘵𝘳𝘦 𝘧𝘰𝘳 𝘊𝘩𝘪𝘭𝘥 𝘓𝘢𝘸 𝘢𝘴 𝘈𝘮𝘪𝘤𝘶𝘴 𝘊𝘶𝘳𝘪𝘢𝘦),¹º “[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.” However, this list is not exhaustive.¹¹ Furthermore, as Boezaart states, a “plethora of laws” 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 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 and the international legal framework and to recognise the rights of children that may be enforced against parents, but also against the State.¹² One of the most important of these is the 𝘊𝘩𝘪𝘭𝘥𝘳𝘦𝘯’𝘴 𝘈𝘤𝘵¹³ which was enacted (inter alia) to give effect to the constitutional rights of children¹⁴ 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 𝘊𝘩𝘪𝘭𝘥𝘳𝘦𝘯’𝘴 𝘈𝘤𝘵 effectively codifies the South African law of parent and child.¹⁵ 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 𝘊𝘩𝘪𝘭𝘥𝘳𝘦𝘯’𝘴 𝘈𝘤𝘵 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 parents’ 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.enDissertationUniversity of the Free State