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Judgement of 25 pages for the course Family Law at wits (Cases)
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FAMILY LAW CASESTOPIC 2 – Parental rights and responsibilities
KLVC v SDI (Rights of unmarried father)
Today the Supreme Court of Appeal (SCA) delivered a judgment dismissing an
appeal against a judgment of the KwaZulu-Natal Local Division and confirming that
an unmarried biological father has full parental rights and responsibilities to his
minor child.
The appellant (mother) and the first respondent (father) are the biological parents of
a minor child S, a boy born in Durban, South Africa on 30 July 2012.
The parties were never married to each other, nor did they cohabit or live together
in a permanent life partnership.
The father has however at all material times consented to being identified as the
child’s father.
On 28 November 2012, and whilst the father was on a brief visit to the United States
of America, the mother removed the child from Durban and relocated to England
without either informing or seeking permission from the father to do so. At the time
the child was four months old.
On 16 May 2013, the father applied to the High Court of Justice, Family Division of
the United Kingdom (the English court), in terms of the Hague Convention on the
Civil Aspects of International Child Abduction, 1980 (the Hague Convention), for an
order directing the mother return S to his habitual place of residence in Durban,
South Africa.
The basis of the application was that the mother had removed S from South Africa
to England in breach of the father’s joint parental rights and responsibilities by not
seeking his approval before doing so.
The mother opposed that application on the basis that, the father had not been
exercising ‘rights of custody’ as defined in the Hague Convention, and that, there
was a serious risk that should the child be returned to South Africa, he would be
exposed to physical or psychological harm or otherwise be placed in an unbearable
situation.
The question which had to be determined by the English court was
whether the mother’s removal of the child from South Africa without
the father’s approval was wrongful. That determination entailed
determinations whether the removal of the child was wrongful because
it was in breach of the rights of custody of the father under the law of
South Africa immediately before the removal of the child, and whether
the relevant rights of custody were actually being exercised at the time
of the child’s removal.
The English court was unable to decide the question whether the mother was
lawfully entitled in November 2012 to change the place of residence of the child
from South Africa to England without the prior permission or consent of the father or
an appropriate South African court.
Consequently, on 21 August 2013 the English court made an order referring the
following question to a South African court for determination:
‘In November 2012, was it lawful under South African law, having
regard to the circumstances of this case, for the Respondent [mother]
, to change the place of residence of the child from a place in South
Africa to a place in England and Wales without the prior permission or
consent of the Applicant [father] or other appropriate South African
court?’
On 8 October 2013 the father instituted application proceedings in the KwaZulu-
Natal Local Division, Durban (the court a quo) for consideration of the question
referred to it by the English court. The court a quo ruled in the father’s favour
finding that in November 2012, the father had met all the requirements prescribed
in s 21(1)(b)(i) to (iii) of the Children’s Act 38 of 2005 (the Act), and it held that he
had acquired full parental rights and responsibilities in respect of the child as
envisaged in the Act. Accordingly, it was necessary for the mother to have obtained
the father’s consent or permission, alternatively, consent of an appropriate court,
prior to applying for a passport for S’s removal from South Africa. With leave of the
court a quo, the mother appealed against the judgment and order granted by the
court a quo to the SCA.
The question before the SCA was whether the father had acquired full
parental rights and responsibilities in respect of the child prior to the
child’s removal from the Republic in November 2012 by the mother. The
SCA stated that if this question is answered in the affirmative, it follows
that the father had rights of guardianship in respect of the child, and
that either the father’s consent or permission or that of a competent
court was required before the child could be removed from the
Republic.
On appeal, the mother contended that the father only met the requirement of
consenting to be identified as the child’s father, but did not meet the other two
requirements, namely, that the father never contributed either adequately or at all
or attempted in good faith to contribute to the child’s upbringing and expenses in
connection with the maintenance of the child; and that even if he did have was not
exercising them at the time of the child’s removal as he was abroad in November
2012.
The SCA rejected the mother’s contentions and the basis for her attack of the court
a quo’s judgment: that the father had only met one of the three requirements which
all had to be met before an unmarried natural father could acquire full parental
rights and responsibilities over a minor child.
The SCA held that a determination whether an unmarried father met the
requirements in terms of the Act is entirely a factual enquiry which required a
consideration of all the relevant factual circumstances in respect of which judicial
discretion played no role.
The SCA further held that s 21 the Act was specifically intended to provide for the
automatic acquisition of parental rights by an unmarried father if he was able to
meet certain requirements. Further, that the intention was to also accord an
unmarried father with similar rights and responsibilities to the child as the mother,
and to promote equality guaranteed in the Constitution, and more importantly, the
right of a child to parental care as also envisaged in the Constitution.
After reviewing the facts of the case and judgment of the court a quo, the SCA held
that it was satisfied that the finding of the court a quo could not be faulted, that the
father had demonstrated sufficiently that he had acquired full parental rights and
responsibilities in respect of the child on November 2012, and that the father’s
consent was therefore required prior to the removal of the child from the Republic.
The SCA upheld the judgment of the KwaZulu-Natal Local Division and
dismissed the appeal with costs, holding that it was satisfied that the court a
quo was correct in answering the question posed by the English court.
, YG v S (Reasonable chastisement)
Recently, the South Gauteng High Court ruled in a landmark case concerning a
contentious matter - that of children and corporal punishment.
The judgment found its roots in the constitutionally protected principle of the best
interests of the child, as articulated in section 28(2).
This section provides that “[a] child’s best interests are of paramount importance in
every matter concerning the child”.
The Court effectively prohibited corporal punishment of children by parents and
removed “reasonable chastisement” as a valid defence.
The appellant in this matter (YG) is the father of a 13-year-old boy (M).
Child was sitting on bed using family iPad when his father entered the room.
The father accused M of watching porn which is strictly against their religion
(Muslim).
M denied this accusation and his father proceeded to physically abuse him.
He hit him in the chest several times, and M lost his balance and fell off his bed
where his father continued to kick him.
YG was tried and found guilty in the Johannesburg Regional Court, on two charges of
assault with intent to do grievous bodily harm.
The charges related to two separate assaults - the first against M and the second
against his (YG) wife.
M was examined by a medical doctor who testified regarding the seriousness of the
injuries sustained.
The testimony disproved YG’s allegations that he used open palms to assault the
child, versus fists that left the bruising in question.
YG used “reasonable chastisement” as a defence and said that he was merely
exercising his right as a parent to do so.
Until this judgment, this was an accepted defence to the charge of common law
assault.
The main issue was whether this defence, which is based on the
common law right of a parent to exact corporal punishment on their
child, is compatible with the Constitution.
In coming to its decision, the Court relied on submissions from numerous amici
curiae namely: The Minister of Justice and Correctional Services, the Minister of
Social Development, the Centre for Child Law (CCL) the Children’s Institute, the
Quaker Peace Centre, Sonke Gender Justice and Freedom of Religion South Africa
(FORSA).
Those who opposed corporal punishment argued that the defence of reasonable
chastisement is inconsistent with the Constitution and asked the Court to develop
the common law by declaring the defence no longer admissible.
A connection was drawn between corporal punishment and violence against
children.
On the other hand, FORSA argued that millions of South Africans of different faiths
believe that scriptures command appropriate chastisement for children, including
corporal punishment.
They argued that this belief is central to many faith groups and that the Court had a
duty to respect the religious convictions of all people, as per the Constitution in
section 15.
Therefore, they argued that the defence should be retained as acceptable.
The Court went to great pains to explore both national legislation and international
law by which South Africa is bound.
An important highlight in this regard was the constitutional obligation placed on the
courts to apply the Bill of Rights in section 8(1), and the section 39(2) duty to
develop the common law to bring it in line with the Bill of Rights.
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