Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Mthatha Children’s Court

Family law legal matters can be very stressful. This is so whether you live in Mthatha or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client.

This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in Mthatha. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in Mthatha or any other city in South Africa.

What to do before visiting the Mthatha Children’s Court

Before you approach the Children’s Court in Mthatha, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. Mthatha has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the Mthatha Children’s Court for assistance.

TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.

Approaching the Mthatha Children’s Court

The Mthatha Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Mthatha Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you.

Once you arrive at the Mthatha Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2.

In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:

PART A: PARTICULARS OF CHILD(REN)
PART B: PARTICULARS OF *CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON *ACTING IN THE INTEREST OF THE CHILD/*ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ *MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
PART D: PARTICULARS OF MATTER

In part D, the following is stated which you need to provide in the form:

Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
Documents: Are there any documents relating to the matter? (If so please attach)

Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Mthatha.

TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.

Processing your Application at the Mthatha Children’s Court

Once you complete the Form A and submit it to the Clerk of the Mthatha Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow.

TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.

Appearing in the Mthatha Children’s Court

When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:

Get a social worker involved in the matter;
Appoint a legal representative for the minor child;
Implement interim care and contact arrangements;
Having the parties attempt to agree on a parenting plan;

In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests.

TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.

Finalising the matter in the Mthatha Children’s Court

Once the Mthatha Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later.

TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.

The above Mthatha Children’s Court Application tips 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, Mthatha, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Posted on 11 February 2025 by Telelaw

Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Mthatha Children’s Court

What to do before visiting the Mthatha Children’s Court

TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.

Approaching the Mthatha Children’s Court

In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:

PART A: PARTICULARS OF CHILD(REN)
PART B: PARTICULARS OF *CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON *ACTING IN THE INTEREST OF THE CHILD/*ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ *MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
PART D: PARTICULARS OF MATTER

In part D, the following is stated which you need to provide in the form:

Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
Documents: Are there any documents relating to the matter? (If so please attach)

Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Mthatha.

TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.

Processing your Application at the Mthatha Children’s Court

TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.

Appearing in the Mthatha Children’s Court

Get a social worker involved in the matter;
Appoint a legal representative for the minor child;
Implement interim care and contact arrangements;
Having the parties attempt to agree on a parenting plan;

Finalising the matter in the Mthatha Children’s Court

TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.

The above Mthatha Children’s Court Application tips 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, Mthatha, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

[caption id="attachment_10799" align="alignnone" width="720"] Relocation consent for minor child to Brazil – Advocate Muhammad Abduroaf[/caption]
I want to relocate from South Africa to Brazil with my minor child. The other parent does not want my child to relocate to Brazil. What can I do?
Brazil is a popular destination to emigrate to. People emigrate from South Africa for many reasons. It ranges from better employment opportunities, family relations, or for a better standard of living. Whatever the reason a parent wants to relocate to Brazil, if a minor child will be joining that parent and also relocating to Brazil, then the parent remaining in South Africa’s consent would usually be required. Let us unpack the legal issues a parent may encounter when wanting to emigrate to Brazil. Before we do so, let us list the various cities and towns in Brazil to which you may want to relocate: Acre, Rio Branco, Alagoas, Maceió, União dos Palmares, Amapá, Macapá, Amazonas, Itacoatiara, Manaus, Tefé, Bahia, Alagoinhas, Feira de Santana, Ilhéus, Itabuna, Jequié, Juazeiro, Paulo Afonso, Salvador, Vitória da Conquista, Ceará, Aracati, Crato, Fortaleza, Juazeiro do Norte, Sobral, Distrito Federal, Brasília, Espírito Santo, Cachoeiro de Itapemirim, Colatina, Fundão, Vila Velha, Vitória, Goiás, Anápolis, Catalão, Goiânia, Goiás, Ipameri, Jataí, Maranhão, Alcântara, Caxias, São Luís, Mato Grosso, Cuiabá, Mato Grosso do Sul, Campo Grande, Corumbá, Três Lagoas, Minas Gerais, Araguari, Barbacena, Belo Horizonte, Congonhas, Conselheiro Lafaiete, Diamantina, Divinópolis, Governador Valadares, Juiz de Fora, Mariana, Montes Claros, Nova Lima, Ouro Prêto, Passos, Patos de Minas, Poços de Caldas, Sabará, São João del Rei, Sete Lagoas, Teófilo Otoni, Uberaba, Uberlândia, Pará, Belém, Bragança, Monte Alegre, Óbidos, Santarém, Campina Grande, Paraíba, Campina Grande, João Pessoa, Paraná, Curitiba, Londrina, Maringá, Paranaguá, Ponta Grossa, Pernambuco, Caruaru, Garanhuns, Jaboatão, Olinda, Petrolândia, Petrolina, Recife, Piauí, Floriano, Parnaíba, Teresina, Rio de Janeiro, Angra dos Reis, Barra Mansa, Campos dos Goytacazes, Copacabana, Duque de Caxias, Nilópolis, Niterói, Nova Friburgo, Nova Iguaçu, Petrópolis, Resende, Rio de Janeiro, São Gonçalo, São João de Meriti, Teresópolis, Volta Redonda, Rio Grande do Norte, Mossoró, Natal, Rio Grande do Sul, Bagé, Bento Gonçalves, Canoas, Caxias do Sul, Novo Hamburgo, Passo Fundo, Pelotas, Porto Alegre, Rio Grande, Santa Maria, São Leopoldo, Uruguaiana, Rondônia, Guajará-Mirim, Pôrto Velho, Roraima, Boa Vista, Santa Catarina, Blumenau, Criciúma, Florianópolis, Itajaí, Lajes, Tubarão, São Paulo, Americana, Araçatuba, Araraquara, Barretos, Bauru, Botucatu, Campinas, Catanduva, Cubatão, Franca, Guaratinguetá, Guarujá, Guarulhos, Itapetininga, Jacareí, Jaú, Jundiaí, Limeira, Marília, Mogi das Cruzes, Osasco, Ourinhos, Piracicaba, Presidente Prudente, Ribeirão Prêto, Rio Claro, Santo André, Santos, São Bernardo do Campo, São Caetano do Sul, São Carlos, São José do Rio Prêto, São José dos Campos, São Paulo, São Vicente, Sorocaba, Taubaté, Sergipe, Aracaju, São Cristóvão, Tocantins, Palmas. (https://www.britannica.com/topic/list-of-cities-and-towns-in-Brazil-2055400)
Why do I require the other parent’s Consent to relocate to Brazil?
According to South African law, if you are a co-holder of parental responsibilities and rights over your minor child, you must consent to your child leaving South Africa. In this case, relocating to Brazil. Here we refer to section 18 of the Children’s Act 38 of 2005. The entire provision is as follows: 18 Parental responsibilities and rights (1) A person may have either full or specific parental responsibilities and rights in respect of a child. (2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right- (a) to care for the child; (b) to maintain contact with the child; (c) to act as guardian of the child; and (d) to contribute to the maintenance of the child. (3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must- (a) administer and safeguard the child’s property and property interests; (b) assist or represent the child in administrative, contractual and other legal matters; or (c) give or refuse any consent required by law in respect of the child, including- (i) consent to the child’s marriage; (ii) consent to the child’s adoption; (iii) consent to the child’s departure or removal from the Republic; (iv) consent to the child’s application for a passport; and (v) consent to the alienation or encumbrance of any immovable property of the child. (4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the Consent of the other any right or responsibility arising from such guardianship. (5) Unless a competent court orders otherwise, the Consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c). Now let us explain what Parental Responsibilities and Rights are.
What are Parental Responsibilities and Rights of a parent in relation to a child?
As can be seen from section 18(2) of the Children’s Act, when we refer to Parental Responsibilities and Rights, we refer to the following: (a) to care for the child; (b) to maintain contact with the child; (c) to act as guardian of the child; and (d) to contribute to the maintenance of the child. Therefore, if a parent has parental responsibilities and rights over a minor child, and accordingly, rights of guardianship, their Consent is required when it comes to issues of guardianship. As seen from section 18(3)(c) of the Children’s Act above, both parents’ Consent is required should a minor child depart from the Republic of South Africa. In this case, to emigrate to Brazil. Even if the minor child only wants to go for a short holiday to Brazil, both guardians’ Consent would be required.
When would the other parent be seen as a guardian in the case of a relocation matter to Brazil?
It must be noted that not all parents are legal guardians over their minor children. We should therefore distinguish between married or divorced parents and parents who were never married. As you would see below, usually married, or divorced parents’ Consent would be required for a minor child to relocate or emigrate to Brazil. However, that does not automatically apply to parents who were never married. This could be because the child could have been born from a brief encounter and never met his or her father. It would not make sense that a parent who never met his or her 15-year-old child, should give Consent for relocation to Brazil.
Mother’s Consent for relocation of the minor child to Brazil
Section 19 of the Children’s Act deals with the Parental responsibilities and rights of mothers. It states the following: 19 Parental responsibilities and rights of mothers (1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child. (2) If- (a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and (b) the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child. (3) This section does not apply in respect of a child who is the subject of a surrogacy agreement. As seen from section 19(1) of the Children’s Act, in most cases involving the relocation of a minor child to Brazil, the mother’s Consent is required as she has full parental responsibilities and rights over the minor child.
Married father’s Consent for the relocation of the minor child to Brazil
Section 20 of the Children’s Act deals with Parental responsibilities and rights of married fathers. It states the following: 20 Parental responsibilities and rights of married fathers The biological father of a child has full parental responsibilities and rights in respect of the child- (a) if he is married to the child’s mother; or (b) if he was married to the child’s mother at (i) the time of the child’s conception; (ii) the time of the child’s birth; or (iii) any time between the child’s conception and birth. As can be seen from sections 20 (a) and (b) of the Children’s Act, if the father and the mother were married, or are married, then his Consent is required for the minor child to relocate to Brazil. Of course, an exception to this would be should a court of law order otherwise. This would be the case should the parents be divorced and the divorce court ordered that only the mother may act as guardian. Next, we deal with the issue of an unmarried father’s Consent to relocate a minor child to Brazil.
Consent of unmarried fathers for the relocation of their minor children to Brazil.
Section 21 of the Children’s Act deals with parental responsibilities and rights of unmarried fathers. The section states the following: 21 Parental responsibilities and rights of unmarried fathers (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child- (a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or (b) if he, regardless of whether he has lived or is living with the mother- (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law; (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. (2) This section does not affect the duty of a father to contribute towards the maintenance of the child. (3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. (b) Any party to the mediation may have the outcome of the mediation reviewed by a court. (4) This section applies regardless of whether the child was born before or after the commencement of this Act. As can be seen from the latter sections, a father of a child born out of wedlock does not automatically have parental responsibilities and rights over his minor child. He may however acquire those parental responsibilities and rights over his minor child if he is materially involved in the child’s life. That would be where the father and the mother were in a permanent life partnership when the child was born or he is meaningfully involved in the child’s life, as outlined above. We shall not go into much detail regarding that. However, in most cases, if the father had regular contact with the child and paid child support, he would have acquired parental responsibilities and rights over the minor child.
What do you do if the other parent does not want to consent to the minor child relocating to Brazil?
Suppose the other parent also has parental responsibilities and rights over the minor child, and he or she does not want to consent to the relocation of the minor child to Brazil, then in such a case, the Court needs to be approached. Here I refer you back to section 18(5) of the Children’s Act referred to above where it states: (5) Unless a competent court orders otherwise, the Consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c). Therefore, after your Court Application has been launched an both sides have been heard, the Court would make the necessary Order. If you are successful in your application for the relocation of your minor children to Brazil, then the Court will make an Order similar to that which is shown below. [caption id="attachment_10798" align="alignnone" width="694"] Relocation consent for minor child to Brazil – Advocate Muhammad Abduroaf[/caption] [caption id="attachment_10799" align="alignnone" width="690"] Relocation consent for minor child to Brazil – Advocate Muhammad Abduroaf[/caption]

Posted on 11 February 2025 by Telelaw

The Cape Town Magistrates’ Court
If you reside in the Cape Town, Western Cape area, you will most probably fall under the magisterial jurisdiction of the Cape Town Magistrate’s Court. There details are below.
Contact details of Cape Town Magistrate’s Court
The physical address of the Cape Town Magistrate’s Court is situated at:
7-11 Parade Street, Cape Town, 8000
The postal address of the Cape Town Magistrate’s Court is as follows:
Private Bag X9017, Cape Town, 8000
The contact number of the Cape Town Magistrate’s Court is as follows:
021 401 1511 For more information, visit https://www.westerncape.gov.za/facility/cape-town-magistrates-court .
Our Family Law Clients
We firmly believe in family relations and the need to protect and enforce it when necessary. Therefore, proper legal advice must always be provided. This we strive to ensure. Although we are based in Cape Town, we offer legal advice and legal services to clients throughout South Africa. This we do as we believe in providing high quality legal services to everyone who requires it.
Have a family Law appointment with us
We have an online appointments system which enables you to save valuable time and cut straight to the chase. There is therefore no need for you to visit our offices (unless it is best for you to do so, or is your most preferred option). You may set up telephonic or video consultations should you wish to do so. You can therefore stay in the office or on the couch in the comfort of your own home when dealing with us. We are therefore physical, online, set-up and ready to meet with you. Make your appointment online for a consultation today. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. Should you require any other legal services and advice, not related to family law, visit Private Legal.
High Court Advocate Cape Town Western Cape
Or click here for the details of Cape Town Advocate, Muhammad Abduroaf or this advocate link to learn more. Visit our child custody and maintenance site for additional information.
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Posted on 11 February 2025 by Telelaw

I am involved in a Child Custody dispute. How do you find out my rights?

A child custody dispute refers to a legal disagreement between parents or guardians regarding the custody or care of a child. This could involve issues such as where the child will live, visitation rights, and decision-making authority concerning the child’s upbringing. The resolution of child custody disputes is typically guided by the best interests of the child and may involve legal proceedings to determine custody arrangements.

Getting Legal Assistance with your child custody dispute

If you require legal assistance or representation with your child custody dispute, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.

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Grandparent, Grandchildren, and the Law – Child Custody, Care and Guardianship

The caregiving of minor children is in principle, supposed to be the joint responsibility of both parents. It took two parents to bring the child into this world. However, equal sharing of the responsibilities is not always the case. Often, in a case of separation, responsibilities changes. The child lives primarily with one parent, and the other parent has reasonable contact, or sometimes less or none. In the scenario of reasonable contact, the child is still cared for by both parents, but not equally. Read on more to find out what does Advocate Muhammad Abduroaf say about this topic.

Equal caregiving of children

There are however cases where caregiving is shared equally – where the child lives for one week with the mother and the other with the father. But that becomes sometimes impractical when the parents live far from each other, and have different work schedules etc. If the child attends school closer to one parent’s home, he would have to wake up at different times each week, have different parents assist them with school work etc. However, if it can work, and is in the best interests of the child, it should be implemented.

Rights to third parties to minor children

But what happens when a third party, being a relative or otherwise, wants to have contact, care and guardianship over a minor child while one or both the parents are alive? We are not dealing with the issue of adoption – which is a completely different topic – but with the issue of whether other persons can also have rights to contact to a child. It is, however, safe to say that the parents’ rights of contact, custody and so on, would be limited to a certain extent.

Assignment of rights to grandparents

For the purposes of this article, you may ask yourself: Can grandparents be the caregivers of the child? Is this possible and does the law accommodate for a situation where non-biological parents have such rights? You will see below that the law does indeed allow for such a situation. Considering the title of this legal article, we will explore the scenario where maternal grandparents want to have primary care of a minor child after their daughter passed on in a case of a living father. The law mentioned can be applied to any scenario in which third parties are interested in having such rights assigned to the minor child. You may find the following articles interesting:

What law do we look at?

Well, first of all, we should always look at what is stated in the Constitution, Act 108 of 1996. The Constitution is supreme law in South Africa. What it says, is that a child’s best interests are of paramount importance in all matters concerning a child. This is something we already know. Then we look at legislation subordinate to the Constitution. In this case, we look at the Children’s Act 38 of 2005. This is where we are going to get our answers from.

The Children’s Act 38 of 2005

The Children’s Act is the main piece of legislation dealing with matters concerning children. Section 2 of the Children’s Act deals with its objective. Reading it would give you some type of understanding regarding the Act. It is quoted as follows: “2 Objects of Act The objects of this Act are- (a) to promote the preservation and strengthening of families; (b) to give effect to the following constitutional rights of children, namely- (i) family care or parental care or appropriate alternative care when removed from the family environment; (ii) social services; (iii) protection from maltreatment, neglect, abuse or degradation; and (iv) that the best interests of a child are of paramount importance in every matter concerning the child; (c) to give effect to the Republic’s obligations concerning the well-being of children in terms of international instruments binding on the Republic; (d) to make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children; (e) to strengthen and develop community structures which can assist in providing care and protection for children; (f) to protect children from discrimination, exploitation and any other physical, emotional or moral harm or hazards; (g) to provide care and protection to children who are in need of care and protection; (h) to recognise the special needs that children with disabilities may have; and (i) generally, to promote the protection, development and well-being of children.” As you can see, the Children’s Act’s object is very extensive, focused solely in the interests of the child. Now let us look at what does it say about the best interests of a child. [caption id="attachment_5104" align="alignleft" width="208"]

Make an Appointment with us Online[/caption] [caption id="attachment_5103" align="alignleft" width="203"]

View our Family Law Services[/caption]

Best interests of a child

So what is meant by: “the child’s best interests”? Let’s go one step further and by detecting this in our legislation. As mentioned earlier, our Constitution also refers to it. Section 9 of the Children’s Act 38 of 2005 states the following: “9 Best interests of child paramount In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.” Now, there you have it. The law does not look at the interests of the parents or third parties. The law looks at what is best for the child under the circumstances. Now we need to move on to the question this legal article addresses: What does the law say about grandparents or third parties obtaining rights of care, contact and guardianship over a child not born from them? For this, we refer to the Children’s Act. Here it refers to the latter persons as interested persons.

Assignment of contact and care to interested person by order of the court

As third parties do not have any inherent parental responsibilities and rights as parents do; rights are assigned by a Court. Now, what does the law say about assigning rights of contact and care to interested third parties? Here section 23 of the Children’s Act is of assistance. Section 23 is quoted as follows” “23 Assignment of contact and care to interested person by order of court (1) Any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in divorce matters or the children’s court for an order granting to the applicant, on such conditions as the court may deem necessary- (a) contact with the child; or (b) care of the child. (2) When considering an application contemplated in subsection (1), the court must take into account- (a) the best interests of the child; (b) the relationship between the applicant and the child, and any other relevant person and the child; (c) the degree of commitment that the applicant has shown towards the child; (d) the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and (e) any other fact that should, in the opinion of the court, be taken into account. (3) If in the course of the court proceedings it is brought to the attention of the court that an application for the adoption of the child has been made by another applicant, the court- (a) must request a family advocate, social worker or psychologist to furnish it with a report and recommendations as to what is in the best interests of the child; and (b) may suspend the first-mentioned application on any conditions it may determine. (4) The granting of care or contact to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child.” So, there we have it. In short, if you formed part of the child’s life and have an interest in having rights of care and contact – the court may afford you such rights. Therefore, should you divorce the mother of your step child, you may also claim rights of contact to your step-child in the divorce court. Now, what are the potential for rights of guardianship being assigned to third parties and grandparents over minor children? And what is the law state? Here too, the Children’s Act comes to our assistance.

Assignment of guardianship by order of the court

Now that you know that our maternal grandparents referred to in the scenario above or any other interested persons, may be assigned rights of care and contact. Now, let’s move on to the aspect of guardianship. Guardianship would refer to the consent for the application of a passport, leaving the Republic, alienating immovable property and so on in relation to a minor child. In this regard, section 24 of the Children’s Act would be of assistance. This section is quoted as follows: “24 Assignment of guardianship by order of court (1) Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant. (2) When considering an application contemplated in subsection (1), the court must take into account- (a) the best interests of the child; (b) the relationship between the applicant and the child, and any other relevant person and the child; and (c) any other fact that should, in the opinion of the court, be taken into account. (3) In the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child.” The provisions are self-explanatory. What is interesting to note is that only the High Court can assign rights of guardianship over a minor child. The potential problem in that regard is that it can become inaccessible as not all persons can afford to take matters to the High Court. Looking at section 24 (4) of the Children’s Act, in our scenario above where the grandparents want guardianship, but the father is still alive, they must submit very good reasons as to why the father if he is a guardian, is not suitable to have guardianship in respect of the child. One such reason may be that he is and never was involved in the child’s life.

Final words of maternal grandparents obtaining rights over their grandchildren

As can be seen above, it is possible for a non-parent to be assigned rights of care, contact and guardianship over a minor child. What the Court looks at is what interest you have, and whether your application is in the child’s best interest. Now let us look at what role the High Court play in children matters before we conclude.

The High Court in Children Matters

The High Court is the upper guardian of all minor children within its jurisdiction. Therefore, should a matter concerning a child be brought before it, it would be able to adjudicate the matter and make an order as to what is in the minor child’s best interests. Therefore, seeing that guardianship is such an important aspect in a minor child’s life, one can see why the legislature only afforded the High Court with the power to assign rights of guardianship to interested parties.

What to do if you want to be assigned with rights of care, contact and guardianship to a minor child

If you are an interested party in a minor child’s life and wish to be assigned rights of care, contact and guardianship; it is advised that you speak to a lawyer who is knowledgeable on sections 23 and 24 of the Children’s Act and familiar with Court Applications regarding minor children.

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