Notes on the Proposed Amendment of Section 21 of the Children's Act 38 of 2005

Keywords: child law, unmarried father, acquisition of parental responsibilities and rights.

Abstract

In terms of section 21 of the Children's Act 38 of 2005, an unmarried father acquires full parental responsibilities and rights in respect of his child if he lives with the child's mother in a permanent life-partnership when the child is born. He also acquires full parental responsibilities and rights if, regardless of whether or not he has ever lived with the child's mother, he consents or successfully applies to be identified as the child's father or pays damages in terms of customary law, and contributes or attempts in good faith to contribute to the child's upbringing and maintenance for a reasonable period. Several provisions of section 21 are unclear and/or unsatisfactory. The draft Children's Amendment Bill, 2018 seeks to address problematic aspects of the section. Unfortunately, the proposed amendments to section 21 leave one disappointed. Although some of the amendments are welcome, the draft Bill fails to address several of the uncertainties flowing from the current wording of section 21 and even creates additional uncertainties. The wording of many of the amendments has not been properly thought through, and the draft Bill fails to address the key question of whether the requirements in section 21(1)(b) operate conjunctively or independently.

 

GS12.png

References

BIBLIOGRAPHY
Literature
Albertyn "Equality"
Albertyn C "Equality" in Cheadle MH, Davis DM and Haysom NRL (eds) South African Constitutional Law: The Bill of Rights (loose-leaf) (LexisNexis Durban 2004 Service Issue 25: 2018) 4-1-4-65
Boezaart Law of Persons
Boezaart T Law of Persons 6th ed (Juta Cape Town 2016)
Boniface 2009 Speculum Juris
Boniface AE "Revolutionary Changes to the Parent-Child Relationship in South Africa: End of the Revolution for the 'Unmarried Father'?" 2009 Speculum Juris 1-19
Boniface and Rosenberg 2017 THRHR
Boniface A and Rosenberg W "The Potential Effects of the Legalisation of Baby Safes and Anonymous Birth on the Parental Responsibilities and Rights of Unmarried Fathers in South Africa" 2017 THRHR 253-266
Bonthuys 2006 Stell LR
Bonthuys E "Parental Rights and Responsibilities in the Children's Bill 70D of 2003" 2006 Stell LR 482-493
Bosman-Sadie, Corrie and Swanepoel Practical Approach to the Children's Act
Bosman-Sadie H and Corrie L with Swanepoel EJ A Practical Approach to the Children's Act 2nd ed (LexisNexis Durban 2013)
Cronjé and Heaton South African Law of Persons
Cronjé DSP and Heaton J The South African Law of Persons 2nd ed (LexisNexis Butterworths Durban 2003)
Currie and De Waal Bill of Rights Handbook
Currie I and De Waal J The Bill of Rights Handbook 6th ed (Juta Cape Town 2013)
Davel and Jordaan Law of Persons Students' Textbook
Davel CJ and Jordaan RA Law of Persons Students' Textbook 3rd ed (Juta Cape Town 2000)
Domingo and Barratt "Parent and Child"
Domingo W and Barratt A "Parent and Child" in Barratt A (ed) Law of Persons and the Family 2nd ed (Pearson Cape Town 2017) 176-207
Heaton South African Law of Persons
Heaton J The South African Law of Persons 5th ed (LexisNexis Durban 2017)
Heaton "Parental Responsibilities and Rights" in Boezaart Child Law
Heaton J "Parental Responsibilities and Rights" in Boezaart T Child Law in South Africa 2nd ed (Juta Cape Town 2017) 77-107
Heaton "Parental Responsibilities and Rights" in Davel and Skelton Commentary
Heaton J "Parental Responsibilities and Rights" in Davel CJ and Skelton AM (eds) Commentary on the Children's Act (loose-leaf) (Juta Cape Town 2007 Revision Service 9: 2018) 3-1-3-57
Heaton and Kruger South African Family Law
Heaton J and Kruger H South African Family Law 4th ed (LexisNexis Durban 2015)
Kruger and Skelton Law of Persons in South Africa
Kruger H and Skelton A (eds) The Law of Persons in South Africa 2nd ed (Oxford University Press Southern Africa Cape Town 2018)
Louw Acquisition of Parental Responsibilities and Rights
Louw AS Acquisition of Parental Responsibilities and Rights (LLD-thesis University of Pretoria 2009)
Louw 2010 PELJ
Louw A "The Constitutionality of a Biological Father's Recognition as a Parent" 2010 PELJ 154-206
Louw 2016 De Jure
Louw A "Revisiting the Limping Parental Condition of Unmarried Fathers" 2016 De Jure 193-212
Matthias 2015 Social Work
Matthias C "Parental Responsibilities and Rights of Unmarried Fathers: Court Decisions and Implications for Social Workers" 2015 Social Work 96-108
Paleker "Mediation in South Africa's New Children's Act"
Paleker M "Mediation in South Africa's New Children's Act: A Pyrrhic Victory" Unpublished paper delivered at the 4th Asia Pacific Mediation Forum Conference Mediation in the Asia Pacific: Constraints and Challenges (16-18 June 2008 Kuala Lumpur Malaysia)
Schäfer Child Law in South Africa
Schäfer L Child Law in South Africa. Domestic and International Perspectives (LexisNexis Durban 2011)
Skelton "Parental Responsibilities and Rights"
Skelton A "Parental Responsibilities and Rights" in Boezaart T (ed) Child Law in South Africa (Juta Cape Town 2009) 62-92
Skelton and Carnelley Family Law
Skelton A and Carnelley M (eds) Family Law in South Africa (Oxford University Press Southern Africa Cape Town 2010)
Smith "Dissolution of a Life or Domestic Partnership"
Smith B "The Dissolution of a Life or Domestic Partnership" in Heaton J (ed) The Law of Divorce and Dissolution of Life Partnerships (Juta Cape Town 2014) 389-474
SALC Project 110
South African Law Commission Project 110: Report - Review of the Child Care Act (The Commission Pretoria 2002)
SALRC Issue Paper 31
South African Law Reform Commission Project 100D: Issue Paper 31 - Family Dispute Resolution: Care of and Contact with Children (The Commission Pretoria 2015)
Van Heerden "Legitimacy, Illegitimacy and the Proof of Parentage"
Van Heerden B "Legitimacy, Illegitimacy and the Proof of Parentage" in Van Heerden B, Cockrell A and Keightley R (eds) Boberg's Law of Persons and the Family 2nd ed (Juta Cape Town 1999) 326-434
Case law
Ex parte Sibisi 2011 1 SA 192 (KZP)
Fraser v Children's Court Pretoria North 1997 2 SA 261 (CC)
Fraser v Naude 1999 1 SA 1 (CC)
FS v JJ 2011 3 SA 126 (SCA)
GM v KI 2015 3 SA 62 (GJ)
Harksen v Lane 1998 1 SA 300 (CC)
I v C (KZDHC) (unreported) case number 11137/2013 of 4 April 2014
Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) 1999 2 SA 1 (CC)
KLVC v SDI 2015 1 All SA 532 (SCA)
Prinsloo v Van der Linde 1997 3 SA 1012 (CC)
RRS v DAL (WCHC) (unreported) case number 22994/2010 of 10 December 2010
Legislation
Child Care Act 74 of 1983
Children's Act 38 of 2005
Children's Amendment Bill, 2018
Constitution of the Republic of South Africa, 1996
Natural Fathers of Children Born out of Wedlock Act 86 of 1997
Government publications
GN R261 in GG 33076 of 1 April 2010
GN 1185 in GG 42005 of 29 October 2018
Memorandum on the Objects of the Children's Third Amendment Bill, 2018
Proc 13 in GG 30030 of 29 June 2007

LIST OF ABBREVIATIONS
PELJ Potchefstroom Electronic Law Journal
SALC South African Law Commission
SALRC South African Law Reform Commission
Stell LR Stellenbosch Law Review
THRHR Tydskrif vir Hedendaagse Romeins-Hollandse Reg
Views
  • Abstract 201
  • pdf 190
  • xml 4
  • epub 62
Views and downloads are with effect from 11 January 2018
Published
2019-09-03
Section
Notes