Summary
Summary Family law case summaries
- Course
- Family Law (LAWS1013A)
- Institution
- University Of The Witwatersrand (wits)
Family law case summaries for final exam, university of the witwatersrand
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CASE SUMMARIES FAMILY LAWCASE ANALYSIS CASE
EJ AND OTHERS v HAUPT 2022 (1) 514 (GP)
FACTS
ISSUE
PRINCIPLE
APPLICATION
CONCLUSION
TOPIC 2: PARENTS AND CHILDREN GENERAL
KLVC V SDI [2015] 1 ALL SA 532 (SCA)
Division: The Supreme Court of Appeal of South Africa
Case number: 20334/2014
Date: 12 December 2014
THE FACTS:
• Appellant and First Respondent are the biological parents of minor S.
• They were never married nor did they cohabit or live together in a permanent life
partnership.
• First respondent at all material times consented to being identified as the child’s father.
• While he was on a brief trip to the USA, the appellant removed S from Durban and
relocated to England without either informing or seeking permission from the first
respondent to do so.
• The first respondent applied to the High Court of Justice in the United Kingdom, claiming
that his co-parental rights have been breached and requested for S to be returned to
South Africa.
• The court was unable to come to a decision and so referred the question (lawful for the
mother, under SA law, to change the place of residence of S from SA to UK without
prior consent of father or other appropriate SA court) to a South African court.
Court a quo
• ruled in fathers favour and found that he met all the requirements prescribed in
S21(1)(b)(i)(iii) of The Children’s Act 38 of 2005.
• He acquired full parental rights and responsibilities in respect of S as envisaged in S18 of
The Act.
, • It was therefore necessary that the appellant obtained the first respondents’ consent.
Appellant sought to expand the grounds of her appeal:
(1) that the competency of her counsel in the court a quo was inadequate and
(2) she wanted to bring more evidence forward.
Both were denied.
THE LEGAL ISSUE:
• The lawfulness or otherwise of the appellant’s conduct when she removed the child from
South Africa must be determined with reference to this date.
• Was it lawful for the appellant to change the place of residence of S from SA to the UK
without prior consent of father or other appropriate SA court?
* in terms of Article 3(a), whether the removal of the child was wrongful because it was in
breach of the rights of custody of the first respondent under the law of South Africa
immediately before the removal of the child
*in terms of Article 3(b), whether the relevant rights of custody were actually being exercised at
the time of the child’s removal
THE LEGAL PRINCIPLE:
Rights and responsibilities of the unmarried father.
S 21(1)(b)(i)-(iii) of the Children’s Act 38 of 2005 provides for the acquisition of full parental
rights and responsibilities.
S 18(2)(c) references that acting as a guardian of a child is included in the rights and
responsibilities that a person has toward a child.
S 18(3)(c)(iii) and (iv) permits the rights of a guardian to:
(ii) consent to the child's departure or removal from the Republic;
(iv) consent to the child's application for a passport
APPLICATION:
• In terms of S21(1)(b) of the Act, the first respondent had acquired full parental rights
and responsibilities in respect of the child envisaged in S18(2)(c) if affirmative, first
respondents consent would be needed.
• Court a quo decision was that even if requirements were self-standing and distinct
requirements, the first respondent had met them all. The language of these requirements
, is deliberately broad permitting a range of considerations in order to exercise value
judgement.
• An unmarried father either acquires parental rights and responsibilities or he doesn’t.
• S21(b)(i) is not in dispute as he consented to being identified as the father.
• S21(b)(ii) and (iii) are in dispute and the meaning that was intended by the Legislature for
phrases like ‘contribute’ and ‘for reasonable period’ must be analysed.
the purpose of the legislature:
• Under the common law unmarried fathers acquired no parental rights and responsibilities
for children born out of wedlock.
• S21 was specifically intended to prove the automatic acquisition of parental rights by
unmarried fathers if he was able to meet certain requirements.
• Intention was to accord an unmarried father similar rights and responsibilities in relation
to his child as a married father would have.
• Promotes equality (S9) and the right of a child to parental care as envisaged by (S28).
• S20 accords automatic full parental responsibilities and rights to married fathers, makes
no stipulation whatsoever that such fathers should contribute towards the upbringing or
expenses of their children.
• Clear that the Legislature draws a distinction between married and unmarried fathers.
Agree:
• Court a quo
• The concept of a contribution or an attempt in good faith to contribute to the child’s
upbringing for a reasonable period are: “elastic concepts and permit a range of
considerations culminating in a value judgement as to whether what was done could be
said to be a contribution or a good faith attend at contributing to the child’s upbringing
over a period which, in the circumstances, is reasonable”
S21(1)(b)(ii)
• The appellant contended that the first respondent was not present at the birth, unwilling
father from the day he was made aware of the pregnancy, only made visits for 20-30
minutes instead of the agreed 40 etc.
• Most assertions are irrelevant to the requirement.
, • First respondent demonstrated that at all material times he was willing to be involved in
S’s wellbeing and upbringing. Appellant made it difficult to fulfil this requirement (wouldn’t
allow him to be present at the birth of the child).
• Clear from evidence that the First Respondent desired to spend more time with S.
• The fact that the First Respondent visited and interacted with S regularly, Introduced S to
his extended family and Took out an endowment policy to cater for S’s future upbringing
are contributions to S’s upbringing prior removal to England and so this requirement has
been met.
S21(b)(iii)
• Expenses related to the maintenance of the child for a reasonable period.
Must consider against S21(2) of The Act:
• this requirement does not affect the duty of a father to contribute towards the
maintenance of the child.
• The extent and nature of the contribution is again unqualified in the legislation.
Maintenance Act 99 of 1998.
• First Respondent bought several items for S and built changing table (sentimental value).
• Offered to put S on his medical aid and was never given Appellants banking details when
asked for them.
• Contributed approximately 11.5% of S’s expenses (R14 000).
• Contributions to S’s expenses in connection with the maintenance of the child are
substantial and so requirement has been met.
• First Respondent demonstrated sufficiently that he had acquired full parental
responsibilities of S.
CONCLUSION
The court ruled in favour of the first respondent.
The court found that the first respondent had met all the requirements set on out in s 21(1)(b).
As co-guardian of S the first respondent’s consent was, therefore, required prior to the removal
of S from the Republic by the appellant. Because the appellant made the process leading up to
this point particularly difficult, she must pay costs.
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