Focus Area 2_INTRODUCTION AND BACKGROUND 2023

INTRODUCTION AND BACKGROUND
FOCUS AREA 2 (PARENTAL RESPONSIBILITIES AND RIGHTS)
The acquisition and loss of parental responsibilities and rights – general
Prescribed sources
Sloth-Nielsen J “Sideswipes and Backhanders: Abolition of the Reasonable

Chastisement Defence in South Africa” 2020 (34) Int’l J L Pol Fam 191-203
Ramruch V “Unfit parent – Losing parental responsibilities and rights” 2013 (537)
(December) De Rebus 24-27
Heaton J “Notes on the Proposed Amendment of Section 21 of the Children’s Act 38

of 2005” 2019 (22) PELJ 1-21
Heaton J “Parental responsibilities and rights” in Boezaart T (ed) Child law in South
Africa 2ed (Juta Claremont 2017) 77-107
Sloth-Nielsen J & Van Heerden B “The ‘constitutional family’: Developments in South

African child and family law 2003-2013” 2014 (28) Int’l J L Pol Fam 100-120
Nkosi G “A perspective on the dichotomy of acquisition of parental responsibilities and

rights by fathers in terms of the Children’s Act and customary law” 2018 (39)
Obiter 197-202
The Children’s Act 38 of 2005 provides for the automatic acquisition of parental
responsibilities and rights by biological mothers (section 19) and married fathers of
children (section 20). Automatic parental responsibilities and rights can also be
acquired by unmarried fathers in certain circumstances (section 21). As highlighted by
Heaton in Boezaart (ed) and in her PELJ article, section 21 is not without problems.
Several provisions are unclear or unsatisfactory. The legislature does have plans to
amend the section thought, and in her article she considers the proposed amendments
to section 21 as contained in the draft Children’s Amendment Bill, 2018. She
1
concludes that these proposed amendments are disappointing and fall short of their
aims.
Parental responsibilities and rights can also be acquired by concluding a parental

responsibilities and rights agreement with the child’s mother or another person who
has parental responsibilities and rights in respect of the child (section 22). Further, a
parent who has sole guardianship in respect of a child may appoint a fit and proper
person as a guardian of the child, or to care for the child in the event of the death of
the parent (section 27). A court can also grant an order assigning contact and care to
a person who has an interest in the care, well-being or development of a child (section
23). The same can be done in respect of guardianship of a child. Currently, this can
only be done by the High Court (section 24). However, the Children’s Amendment Act
17 of 2022 was assented to on 5 January 2022. It has not yet come into effect, but
when it does it will amend section 24 so that the children’s court may be approached
for an order granting guardianship of a child.
It is common in South Africa that when parents die, the orphan is cared for by a family
member such as a grandmother. This provision can therefore prevent access to justice
for the poorest and most vulnerable children. The concept of shared parental
responsibilities and rights introduced by the Children’s Act necessitates provisions
dealing with the co-exercise of parental responsibilities and rights (sections 30-31).
One of the ways to avoid conflict between co-holders of parental responsibilities and
rights is to have a parenting plan (sections 33-34). Section 35 regulates the
consequences of a refusal by a person who has care of a child to allow another person
who has parental responsibilities and rights in respect of the child to exercise those
responsibilities and rights. All of these aspects are discussed by Heaton in some detail.
Parental responsibilities and rights can also be terminated, extended, suspended or

restricted by courts (section 28). Ramruch deals with provisions relating to locus
standi, jurisdiction, procedure, and merits in such cases.
Sloth-Nielsen and Van Heerden point out that the Children’s Act contains several
important references to the concept of “extended family” (eg sections 7, 32 & 129).
The role played by members of the extended family is also increasingly being
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recognised by the courts. Sloth-Nielsen and Van Heerden discuss two cases dealing
with the role of grandparents, and one dealing with the role of step-parents. Note that
you only need to study pages 109 to 120 of this article.
Corporal punishment has long been used in the home to discipline children, and
although there have been attempts to restrict this in the past, these have not been
successful. However, in Freedom of Religion South Africa v Minister of Justice and
Constitutional Development 2020 (1) SA 1 (CC), the Constitutional Court ruled that
the common-law defence of reasonable chastisement is unconstitutional, thus
effectively outlawing parental corporal punishment. In her article, Sloth-Nielsen
reviews this decision. Though this decision is constitutionally correct, she points out
that there are several aspects of the judgment that leave unanswered questions.
Adoption
Prescribed source
Ferreira S “The voice of the child in adoption in South Africa” 2014 (77) THRHR 375-
386
Skosana T and Ferreira S “Step-parent adoption gone wrong: GT v CT [2015] 3 All SA

613 (GJ)” 2016 (19) PELJ 1-23
Mokotong M “Oe gapa le namane customary law parenting (step-parent adoption from
an African perspective): ML v KG case no 15078/2012 [2013] ZAGPJHC 87 (08
APRIL 2013) SAFLII” 2015 (78) THRHR 344-355
Parental responsibilities and rights can be acquired through adoption. Since the
coming into operation of the Children’s Act, there have been very view judgments
dealing with adoption by step-parents (section 231(1)(c)), and none dealing with
rescission of adoption orders (section 243). In GT v CT [2015] 3 All SA 631 (GJ), two
children had been adopted by their stepfather. In terms of section 243(2) of the
Children’s Act an application for rescission has to be lodged within a reasonable time
3
but not exceeding two years from the date of the adoption. Even so, the stepfather
applied for the rescission of the adoption orders more than six years after the orders
had been handed down. Despite section 243(2), the court in GT v CT granted the
application to rescind the adoption orders. You should study the discussion of this
case by Skosana and Ferreira, with particular reference to their criticism of the
judgment.
Ferreira considers child participation in adoption and criticises the provisions of the
Children’s Act that deal with participation of children in the adoption process. These
include the provision that states that a child who is 10 years of age or older may only
be adopted if consent for the adoption has been given by the child, irrespective of the
child’s level of maturity and development (section 233(1)(c)(i)). She makes certain
recommendations for legal reform to address her points of criticism.
In her article, Mokotong analyses customary adoption and comes to the conclusion
that amendments to the Children’s Act are required.
Surrogacy
Prescribed source
Boniface AE “The genetic link requirement for surrogacy: a family cannot be defined
by genetic lineage – AB v Minister of Social Development 2016 2 SA 27 (GP)”
2017 (1) TSAR 190-206
Surrogate motherhood is regulated by chapter 19 of the Children’s Act (sections 292-

303). You should familiarise yourself with the contents of these sections. Section 294
of the Children’s Act provides that a surrogate motherhood agreement is not valid
unless the gametes of both commissioning parents. If that is not possible due to
biological, medical or other valid reasons, the gamete of at least one of the
commissioning parents must be used, or where the commissioning parent is a single
person, the gamete of that person has to be used (this is the so-called “genetic link
requirement”). In AB v Minister of Social Development 2016 2 SA 27 (GP) the High
Court held that section 294 is invalid and inconsistent with the Constitution. In her
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article, Boniface discusses this case. Note, however, that in AB v Minister of Social
Development 2017 (3) SA 570 (CC), the Constitutional Court held that this requirement
is not unconstitutional and it did not confirm the order of constitutional invalidity of
section 294 made by the High Court. You should study this judgment, with reference
to the case discussion by Boniface.

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INTRODUCTION AND BACKGROUND

FOCUS AREA 2 (PARENTAL RESPONSIBILITIES AND RIGHTS)

The acquisition and loss of parental responsibilities and rights – general

Sloth-Nielsen J “Sideswipes and Backhanders: Abolition of the Reasonable

Heaton J “Notes on the Proposed Amendment of Section 21 of the Children’s Act 38

Sloth-Nielsen J & Van Heerden B “The ‘constitutional family’: Developments in South

Nkosi G “A perspective on the dichotomy of acquisition of parental responsibilities and

Parental responsibilities and rights can also be acquired by concluding a parental

Parental responsibilities and rights can also be terminated, extended, suspended or

Skosana T and Ferreira S “Step-parent adoption gone wrong: GT v CT [2015] 3 All SA

Surrogate motherhood is regulated by chapter 19 of the Children’s Act (sections 292-

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