High Court Appeals

Posted on 11 February 2025 by Telelaw

High Court Appeals

My Child was born out of wedlock: Her mother will not consent to her surname change and for me to be registered as her biological father. What can I do?
It often happens that a child is registered at the Department of Home Affairs with the mother’s surname, and later the father wants the child to have his surname. The opposite is also true. This is when the child has the father’s surname, and the mother wants her to have her surname. This often happens in cases of children born out of wedlock, or in cases where the parents are divorced. So, what can a parent do to change the child’s surname? Read on to find out the answers below. Then there is the other scenario where the details of the father are not provided when registering the child with the Department of Home Affairs. One reason for this could be that the mother is not certain who the father is, or just does not want him to be associated with the child. Either way, that section of the child’s birth registration is left blank. Now, what can such a father, or child do under such a situation? We approached Advocate Muhammad Abduroaf, a Family Law Expert for some advice on this issue. Read on if you want to know more. [caption id="attachment_2957" align="alignleft" width="200"] Consult with us, click here.[/caption]

What is a surname?

A surname connects you to your family, ancestors and heritage. On a rare occasion, your last name can be an omen that you carry with you for the rest of your life. Each parent would prefer to have their offspring have their family name to connect their child to them. But sometimes, getting it right can be a challenge, especially if the child’s parents are not married and do not share the same surname. You may find the following articles interesting:

Most people get married, and the wife usually changes her surname to that of her husband, or have what they call a “double-barrel” surname. If that is the case, then their offspring would have their last name. Should the child walk down the street past a neighbour, and a neighbour asks the child her surname, through that they would be able to assume where the child lives, and who her parents are etc. Depending on the neighbourhood, the child’s great-grandparents would also be able to be identified. For some, having the same surname as your parents can be less important, but mostly not.

What does the law say about changing a minor child’s surname?

A child must have the surname of one of his or her parents. If the child was born out of wedlock, the child will have the surname of the mother, unless the father consent to the use of his surname. According to the Births and Deaths Registration Act 51 of 1992 a “child born out of wedlock” “does not include a child whose parents were married to each other at the time of his or her conception or at any time thereafter before the completion of his or her birth”. We are going to look at two issues in this legal article. The first is that of the amendment of the birth registration of children born out of wedlock. In other words, correcting the records to reflect the biological father, as the father. It is possible for the change of a surname of a child born within marriage; however, this article will not be dealing with that. The other issue we shall look at is how can a surname change be done. This would be of use to fathers who never married the mother.

Where are the father’s details found?

It may come to the surprise of the father to find out that he is not registered as the father of his child at the Department of Home Affairs. When he finds this out, the first thing he may do is speak to a lawyer or do some research. Either route will take him to the relevant legislation, in this case, the Births and Deaths Registration Act 51 of 1992. The Act is a long and crafty piece of legislation. We shall however only deal with the relevant sections for this legal piece.

Section 11 of the Births and Deaths Registration Act 51 of 1992

Section 11 of the Births and Deaths Registration Act 51 of 1992 deals with the amendment of birth registration of a child born out of wedlock. An extract of the Act is as follows:

Amendment of birth registration of child born out of wedlock

(1) Any parent of a child born out of wedlock whose parents married each other after the registration of his or her birth, may, if such child is a minor, or such child himself or herself may, if he or she is of age, apply in the prescribed manner to the Director-General to amend the registration of his or her birth as if his or her parents were married to each other at the time of his or her birth, and thereupon the Director-General shall, if satisfied that the applicant is competent to make the application, that the alleged parents of the child are in fact his or her parents and that they legally married each other, amend the registration of birth in the prescribed manner as if such child’s parents were legally married to each other at the time of his or her birth. (2) If the parents of a child born out of wedlock marry each other before notice of his or her birth is given, notice of such birth shall be given and the birth registered as if the parents were married to each other at the time of his or her birth. (3) … (4) A person who wishes to acknowledge himself to be the father of a child born out of wedlock, may, in the prescribed manner, with the consent of the mother of the child, apply to the Director-General, who shall amend the registration of the birth of such child by recording such acknowledgement and by entering the prescribed particulars of such person in the registration of the birth of such child. (4A) An amendment of the particulars of a person who has acknowledged himself as a father of a child as contemplated in subsection (4) and section 10(1)(b) of the Act shall be supported by the prescribed conclusive proof of that person being the father of the child. (5) Where the mother of a child has not given her consent to the amendment of the registration of the birth of her child in terms of subsection (4), the father of such a child shall apply to the High Court of competent jurisdiction for a declaratory order which confirms his or her paternity of the child and dispenses with the requirement of consent of the mother contemplated in subsection (4). (6) When the court considers the application contemplated in subsection (5) the provisions of section 26(b) of the Children’s Act shall apply. In short, the sections say … The above sections are self-explanatory. They deal with the situation where a change is made in relation to the marital status of the parent and for the inclusion of the father in the records. What is important to note is that the records can be changed after the parent married each other, and by the child when he or she turns 18. Furthermore, even if the mother refuses to give consent, the father can apply to the Court to dispense with the mother’s consent. Section 26(b) of the Children’s Act deals with persons who apply to Court to confirm paternity. As can be seen from the above, the law allows for a change in the birth registration regarding the marital status of a child’s parents in relation to the specific child, as well as the identity of the child’s father. According to the regulations of the Births and Deaths Registration Act 51 of 1992, both parents must complete Form BI-1682 and submit it to any domestic Home Affairs office under normal circumstances. Otherwise, a Court order is required.

Alteration or Change to a minor child’s surname

Now we move onto the aspect of the alteration of the surname of the minor child. Unlike the amendment of the records to reflect the marital status of the parents, or identity of the father of the minor child in the record, where we are dealing with factual issues; changing a surname, can have greater issues. In other words, a mother would not have much of a foot to stand on in refusing a father the right to have the records reflect him as a father. However, when it comes to a parent refusing a surname change, things are not that simple. This is where a child’s best interests have to be looked at. At the outset, one can assume that litigation could become inevitable. The relevant section to look at is section 25 of the Births and Deaths Registration Act 51 of 1992. An extract of the Act is as follows:

Alteration of surname of minor

(1) When – (a) the birth of any minor born out of wedlock has been registered and the mother of that minor marries any person other than the natural father of the minor; (b) the father of any minor is deceased or his or her parents’ marriage has been dissolved and his or her mother remarries or his or her mother as a widow or divorcee resumes a surname which she bore at any prior time and the father, where the marriage has been dissolved, consents thereto in writing, unless a competent court grants exemption from such consent; (c) the birth of any minor born out of wedlock has been registered under the surname of his or her natural father and the natural father consents thereto in writing, unless a competent court grants exemption from such consent; or (d) a minor is in the care of a guardian, his or her mother or his or her guardian, as the case may be, may apply to the Director-General for the alteration of his or her surname to the surname of his or her mother, or the surname which his or her mother has resumed, or the surname of his or her guardian, as the case may be, and the Director-General may alter the registration of birth of that minor accordingly in the prescribed manner: Provided that the man who married the mother of a minor mentioned in paragraph (a) or (b), shall grant written consent for the alteration. (1A) Notwithstanding subsection (1)(b) and (c), the natural father’s written consent is not required where the mother has sole guardianship of the child concerned. (2) Any parent of a minor whose birth has been included under a specific surname in the population register, may on the strength of a reason not mentioned in subsection (1), apply in the prescribed manner to the Director-General for the alteration of the surname of the minor under which his or her birth was registered, and the Director-General may, on submission of a good and sufficient reason given for the contemplated alteration of the surname, alter the said original surname accordingly in the prescribed manner. (3) For the purposes of this section “guardian” includes any person who has in law or in fact the custody or control of a minor. Section 25 is quite self-explanatory. For the purpose of this article, section 25(2) is of relevance. What is important to also note is that if a parent does not consent to the surname change application, the Court can give such consent to such an application or dispense with the refusing parent’s consent. Under all circumstances, the child’s best interests would be looked at when considering such a court application. Below are some examples of good reasons, and not so good reasons for such an Application:

Good reasons for the surname change of a minor child

One good reason would be that the minor child always used the surname of the father, but has not been registered with his surname. There are always problems that occurs due to the parent having a different surname than the child. The father is caring for the child and/or the child primarily lives with him.

Unsound reasons for a surname change of a minor child

On the basis that the child should have the fathers surname in principle. He was never involved in the child’s life but now wants a surname change. The sole reason for the change is that he is paying child support. The child visits him during the holidays.

Final words to parents of children born out of wedlock

If a child was born out of wedlock, it is recommended that the father’s details be included in the registration. If the parties are intending to live together as life partners, and not get married, they need to discuss the aspect of whose surname the child will have. This will have a huge impact on the child’s life in the future. If they cannot come to an agreement on the surname, it would be best to take the issue on mediation. We wish all parents the best in the parenting of their child. Remember, a child cannot choose his or her surname at birth, let alone his or her parents. But you as parents have the choice to make the right decisions for the sake of the future happiness of your child.

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Posted on 11 February 2025 by Telelaw

What parents need to know should they wish to relocate from South Africa to the United Kingdom, Australia, United States, New Zealand or Canada with their minor child
We often receive queries and requests for advice and assistance on issues relating to relocation to another country with a minor child. Related topics relate to the issue of consent for the application for a Passport for a minor child. Sometimes the issue of changing the child’s surname comes into the picture. Of course, if parents are in agreement regarding the issue of relocation and a passport application, all should go well. You may want to see a lawyer to formalise the arrangement to avoid any issues whilst the parent and the child lives abroad. However, if there are potential complications or issues of consent not being forthcoming, then this article would be of assistance.

Why relocate, or emigrate from South Africa to the United Kingdom, Australia, United States, New Zealand, Canada, or elsewhere?

In no particular order, you would find someone relocating from South Africa to the following destinations: The United Kingdom, Australia, United States, New Zealand, Canada, Angola, Botswana, Chile, Zimbabwe, Germany, Netherlands, Swaziland, Israel, Portugal, Mozambique, Ireland, Malawi, Switzerland. Namibia and Greece. The reasons for the relocation vary. For some, it is for a better life, work, or to live with a new spouse or partner. For others, it may just be to explore the world. If there are children involved, then relocation won’t be that easy. Especially so if both parents live in South Africa, and the other wants to relocate with the minor child. In other words, parents who have parental responsibilities and rights need to be considered.

Parental Responsibilities and rights of parents (Applicable to South Africa)

Generally, both parents would have parental rights and responsibilities over a child. We say generally, as this would not always be the case. Mothers automatically have full parental responsibilities and rights over the child. If a parent has parental rights and responsibilities over a minor child; this could entail the right and responsibility to care for the child, have contact with the child and at the same time to act as guardian for the child. This article would deal with the issue of guardianship. If the parties were married the father will automatically have full parental rights and responsibilities over a minor child born from the marriage. If the parties were not married then in short, if the father was involved in the child’s life, he can acquire full parental rights and responsibilities over the minor child. Involvement entails having regular contact with the child and paying maintenance if he can afford so. If the mother refuses to let the father have contact, despite him making a concerted effort, or he cannot afford to pay maintenance, that would be considered.

The parental responsibilities and rights of guardianship (Applicable to South Africa)

Guardians of a minor child have specific rights and responsibilities. Under certain circumstances, both the minor child’s guardians must consent for certain matters. In relation to this article, both guardians must consent for the departure and removal of the minor child from South Africa, and the application for a passport for the minor child. The same would apply for a surname change.

What to do if a parent does not want to consent for the minor child relocating with a parent overseas, for example, Germany?

Before a parent should consider relocating, he or she must first ensure that the child’s best interests would be upheld should the relocation take place. Therefore, the parent should ensure that all the following are attended to:

A decent place to live overseas

For the other parent (the one remaining in South Africa), and the court to properly consider your wish to relocate with the minor child, it is important that there is a decent place for the minor child to live, albeit very modest. It would be difficult to convince the court to allow you to relocate with the child if you intend to find accommodation only once you arrive overseas. Often a parent would live with a relative or friend overseas. In other cases, the employer would arrange for accommodation.

Being able to maintain yourself and the child after you relocated

We doubt that any parent would agree that you may relocate with the child to a country, for example, Canada and you would have to look for work only when you arrive there. This scenario would most probably apply to someone who has dual citizenship or is already a citizen of the country he or she intends to relocate to. But in this case, he or she wants to take the minor child with him or her. Arrangements would have to be made in South Africa. Obviously, one would require a work permit to remain in the country for an extended period of time. If you are relocating on a spousal visa, things would be different. At the end of the day, the court would have to be satisfied that proper arrangements are in place prior to consenting to the relocation when the other parent refuses.

Schooling for the minor child

When the minor child relocates, he or she would have to be enrolled in a school, let’s say in New York. If the child is a toddler, this would not necessarily be an issue. However, if the child is at school-going age, then arrangements would have to be made in South Africa, prior to considering the relocation.

Other factors to consider

There are various further factors to consider when dealing with relocation with a minor child. Some of them relate to how contact would be exercised while the minor child is overseas. Basically, each case is different. However, all relevant factors need to be presented to the court.

When to approach the Court

Once you have done your homework and made the necessary arrangements, you should finally request the consent of the other parent to relocate. If consent is not provided, then you would need to approach the relevant Court. An application would have to be made, with a Notice of Motion, and Founding Affidavit. The documents would also be served on the other parent who would have an opportunity to give their version. At the end of the day, the court would decide what is best for the child and not the parents concerned. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws

Posted on 11 February 2025 by Telelaw

Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Brakpan.
Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty to pay child maintenance and support their children. Once the child is self-supporting (being able to care for him or herself), the obligation falls away. This can happen when the child is 18, 20, or even 30. It all depends on the circumstances of the case.
Claiming child maintenance for your child in Brakpan
Whether you claim child maintenance in Brakpan, or any other city in South Africa, the procedures would be the same. There are however two (2) courts that can deal with child maintenance matters. That is a divorce court, in a divorce matter, and a Child Maintenance Court. For this article, we will focus on claiming maintenance in a Maintenance Court matter in Brakpan.
The maintenance scenario – Brakpan South Africa
In this article, we will deal with the following fictitious scenario, in a child maintenance matter:
The Child is seven years old and attends school in Brakpan
The child is cared for by the mother who works in Brakpan
The mother works and earns a Salary of R 10 000
The father sees the child every second weekend. He also lives and works in Brakpan
The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
The father earns a reasonable salary and can afford the R 20 000 – 00 per month
The mother claims R 4 000 – 00 maintenance as the father earns double her salary
What is the first step the mother must take in claiming child maintenance?
The first thing the mother must do is work out exactly what the child costs by item. She breaks down the minor child’s living expenses, starting from rent or accommodation to groceries to school fees etc. Once she has done that, she would need to determine what exactly does the minor child cost per month, seeing that she will be asking the father to contribute towards that. As best as possible, she needs to collect proof of expenses. This can be in the form of receipts.
How does she start the legal process?
The mother now needs to approach the maintenance court in the area where she lives or works to lodge a complaint for child maintenance. If she lives or works in Brakpan, it would be the maintenance court in Brakpan. She will complete a Form A wherein she will provide all the expenses for her and the minor child. She would also have to stipulate her income. Once she completed the form and submitted it to the maintenance court, she must then follow the next step.
What do you do while waiting for the maintenance court date?
While you wait to be informed of the court date by the Maintenance Court of Brakpan, and up until the actual first court date, you need to ensure that you keep a record of all income and expenses for you and the child. This is very important as the court allocates maintenance based on recent income and expenses.
What happens at the first court appearance at the Brakpan Maintenance Court?
Once you have been notified of the maintenance court date by the Brakpan Maintenance Court, you need to ensure that you attend it. On that day, both you and the father of the child would appear before a maintenance officer. The maintenance officer would go through both your income and expenses as well as that of the father. If all the relevant information is not before the maintenance court, then the matter may be postponed in order for the parties to submit it.
The maintenance officer will try to settle the matter and have the parents come to an agreement regarding the amount of child maintenance to be paid. If they cannot come to an agreement regarding the child maintenance to be paid, the matter would have to proceed to a formal hearing or trial before a Magistrate.
How does the Maintenance Court hearing or trial work in Brakpan?
Essentially, the maintenance court is called upon to make a fair ruling regarding what is a fair amount of child support that needs to be paid. For that to happen, the parents would have to give evidence in that regard. The mother would present to the court what the child costs, what she contributes and what she requires the other parent to pay. The Father would have a right to question the mother and to present evidence as to why he cannot afford the amount requested or why he feels it is an unfair amount. The mother can they also question him.
At the end of the day, the Brakpan Maintenance Court would be able to properly determine what is a fair and adequate amount of child maintenance to pay after being presented will all relevant information. The Brakpan Maintenance Court should play an active role in determining what is a fair amount of child maintenance the father should pay.
The above child maintenance application principles should apply to the following provinces and cities:
Eastern Cape:
Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha
Port Elizabeth, Queenstown, Uitenhage, Zwelitsha
Free State:
Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom
Gauteng:
Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging
KwaZulu-Natal:
Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi
Limpopo:
Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi
Mpumalanga:
Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth
Western Cape:
Bellville, Brakpan, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Posted on 11 February 2025 by Telelaw

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