1

A CRITICAL ANALYSIS OF THE BEST INTERESTS OF THE CHILD PRINCIPLE

WITH SPECIFIC REFERENCE TO PARENTAL RESPONSIBILITIES AND RIGHTS
OF UNMARRIED FATHERS AND GRANDPARENTS

By

ZORORAI NKOMO
(63666596)

Submitted in partial fulfilment of the requirements for the degree

BACHELOR OF LAWS

In the

SCHOOL OF LAW

UNIVERSITY OF SOUTH AFRICA

RRLLB ASSIGNMENT 02

L C COETZEE

23 JUNE 2021

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ACADEMIC HONESTY DECLARATION

Declaration

1. I understand what academic dishonesty entails and am aware of Unisa‘s policies

in this regard.

2. I declare that this assignment is my own, original work. Where I have used
someone else‘s work I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from the work or
works of other people has been referenced according to this style.

3. I have not allowed, and will not allow, anyone to copy my work with the intention of
passing it off as his or her own work.

4. I did not make use of another student‘s work and submitted it as my own.

NAME: ………………………………………………NKOMO ZORORAI

SIGNATURE:.………………………………………Z.NKOMO

STUDENT NUMBER: ……………………………..63666596

MODULE CODE……………………………………RRLLB81

TOPIC SELECTED……………………………….TOPIC 2, PRIVATE LAW

DATE: ………………………………………………22 JUNE 2021

ASSIGNMENT 01 RESULT………………………

ASSIGNMENT 02 RESULT……………………….

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ACKNOWLEDGEMENTS
First and foremost I would like to thank the Almighty God, for making it possible for
me to complete this research report. I would like to extend my very profound
Gratitude to my wife Beauty Marima, my parents, workmates, University of South
Africa Law students and Mr Octovious Ndovisai my former High School friend and
also a former UNISA law student for the great support and commitment they gave
me during my research period. I would also like to express my sincere gratitude to
UNINSA College of Law staff.

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ABSTRACT
Section 28(2) of the Constitution provides that a child‘s best interests are of
paramount importance in every matter concerning the child1. In South Africa,
historically unmarried fathers and grandparents were a group of persons without
inherent parental rights and responsibilities. However, this historical standpoint
changed with the ushering in of the new constitutional dispensation and subsequent
enactment of the Children‘s Act 38 of 2005 which will be referred to as the Act in this
research report. Despite the change in legislation towards unmarried fathers and
grandparents, the central issue remain the fulfilment of the best interest of the child
principle as enunciated in the supreme law of the land. Section 21 and 24 of the Act
provide for requirements which unmarried fathers and grandparents must comply
with to acquire full parental rights and responsibilities, however looking at these
provisions the question is that are they serving the best interest of the child or they
regulate the relationship between the mother and father of the child. This article has
four chapters. Chapter 1 contextualises, explains the research title, problem and
approaches. Chapter 2 will give historical background of grandparents and
unmarried father‘s parental rights and responsibilities in South Africa in relationship
to the best interest of the child. Chapter 3 will give a critical analysis of the
provisions of the Children‘s Act 38 of 2005 on unmarried fathers and grandparents in
relation to the principle of the best interests of the child in exercising parental rights
and responsibilities in South Africa. Chapter 4 will focus on the recommendations
and conclusions of the research report.

KEYWORDS
Children‘s Act 38 of 2005, Unmarried fathers and Grandparents, Acquisition of
parental responsibilities and rights, Best interests of the child

1
Constitution of the Republic of South Africa, 1996, section 28(2).

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LIST OF ABBREVIATIONS AND ACCCRONYMS

Abbreviation/acronym meaning

Constitution The Constitution of South Africa 1996.

JFLP Journal of Family Law and Practice

SALJ South African Law Journal

SALRC South African Law Reform Commission

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TABLE OF CONTENTS
ACADEMIC HONESTY DECLARATION.......................................................................................... 2

ABSTRACT ........................................................................................................................................... 4

KEYWORDS ......................................................................................................................................... 4

LIST OF ABBREVIATIONS AND ACCCRONYMS ......................................................................... 5

CHAPTER 1: CONCEPTUALISATION OF RESEARCH PROBLEM AND

CONTEXTUALISATION OF RESEARCH THEMES ...................................................................... 8

1 BACKGROUND................................................................................................................................. 8

1.1 Research question(s) ................................................................................................................ 8

1.3 Hypothesis .................................................................................................................................. 9
1.2 Research approach ................................................................................................................... 9
1.4 Conclusion .................................................................................................................................. 9
CHAPTER 2: HISTORICAL BACKGROUND OF UMARRIED FATHERS AND
GRNADPARENTS ............................................................................................................................. 11

2. INTRODUCTION ........................................................................................................................... 11

2.1 Historical background ............................................................................................................. 11

2.1.1 History of the concept of best interests of the child .................................................... 11
2.1.2 Common Law Perspective on unmarried fathers and grandparents ........................ 11
2.2 Case law ................................................................................................................................... 12
2.2.1 FS v JJ 2011 (3) SA 126 (SCA ...................................................................................... 12
2.2.2 S v M (Centre for Child Law as amicus curiae) 2008 (3) SA 232 (CC).................... 13
2.3 Legislative development ......................................................................................................... 14
2.3.1 Natural Fathers of Children Born out of Wedlock Act 86 of 1997 ............................. 14
2.3.2 Children’s Act 38 of 2005 ................................................................................................ 14
2.3.3 Conclusion ......................................................................................................................... 15
CHAPTER 3: ANALYSIS OF THE CHILDREN‘S ACT 38 OF 2005 WITH REFERENCE TO
THE PRINCIPLE OF BEST INTERESTS OF THE CHILD. ......................................................... 17

3. INTRODUCTION ........................................................................................................................... 17

3.1 Problematic sections of the act in realisation of the best interests of the child principle
.......................................................................................................................................................... 17
3.1.1 Section 24 of the Act ........................................................................................................ 17
3.1.2 Section 21 of the act ........................................................................................................ 17
3.1.3 Section 22 of the act ........................................................................................................ 18

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 3.1. 4 Conclusion........................................................................................................................ 19
CHAPTER 4: CONCLUSIONS AND RECOMMENDATIONS..................................................... 20

4 INTRODUCTION............................................................................................................................. 20

4.1 Recommendations ...................................................................................................................... 20

4.2 Conclusion ................................................................................................................................... 21
BIBLIOGRAPHY ................................................................................................................................. 22

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CHAPTER 1: CONCEPTUALISATION OF RESEARCH PROBLEM
AND CONTEXTUALISATION OF RESEARCH THEMES

1 BACKGROUND
This research investigates the field of South African private law at macro level and
family law at micro level. This research‘s thrust is firstly to analyse and examine the
literature on the parental rights and responsibility enforcement by grandparents and
unmarried fathers in South Africa in relationship to the concept of the best interests
of the child. The research will analyse also responsibility of grandfathers towards
their grandchildren in South Africa. The research will analyse and examine the
conditions given by the act for one to acquire parental responsibility in relationship to
concept of best interests of the child. Section 18(2) of the Children‘s Act 38 of 2005
clearly defines parental rights and responsibilities.2 Since in South Africa, historically
unmarried fathers were a group of persons without rights over their children who
were born out of wedlock, this research will also give a historical context on 2the
unmarried father‘s standing in the eyes of the law.3 In the case of FS v JJ and
Another 2011 (3) SA 126 (SCA) the court held that parents‘ rights and
responsibilities outrank those of grandparents, the court on that basis overruled the
care order which was issued in the favour of the grandparent.4The other aim of this
research is to analyse if the ushering in of Act 38 of 20055 in South Africa really
helped in improving the rights of unmarried fathers and grandparents on parental
responsibilities on their children. The research report will also prove
recommendations and conclusion.

1.1 Research question(s)

Did the enactment of the Children‘s Act 38 of 2005 give effect to spirit, tenor and
objects of section 28(2) of the Constitution?

Are the provisions of the Children‘s Act 38 of 2005 which are to be complied with for
an unmarried father and grandparent to acquire parental rights and responsibilities
really in line with the constitutional provision of the best interests of the child in South
Africa?

2
Act 38 0f 2005,Section, 18 (2).
3
Boezaart T ―Child Law in South Africa‖ (2009) 71.
4
FS v JJ and Another 2011 (3) SA 126 (SCA).
5
Children‘s Act 38 of 2005, section,21 and 24.

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Are the provisions which unmarried fathers and grandparents need to satisfy to
acquire parental rights and responsibilities justified in a democratic society based on
human dignity, equality and freedom?

Can parliament or the legislator provide solution through enactment of legislation on

the challenges of unmarried fathers‘ parental rights and responsibilities in light of the
principle of best interests of the child?

1.3 Hypothesis
Despite the ushering in of a new constitutional dispensation in South Africa and
entrenchment of the principle of the child‘s best interests in the supreme law of the
land the country witnessed the subsequent enactment of Children‘s Act 38 of 2005.
However, the Act provides for certain requirements to be met by unmarried fathers
and grandparents to acquire parental rights and responsibilities which now becoming
a challenge in the full realisation of the best interests of the child principle in South
Africa, the act wants requirements provided section 21 and 24 of the Act to be met,
but it‘s not clear whether meeting those requirements will guarantee realisation of the
best interests of the child principle enshrined in the constitution.

1.2 Research approach

In this research report, the researcher will adopt a qualitative approach to the
research. Reports, textbooks, case law, statutes, electronic sources, journal
materials will be used. The researcher will use an analytical approach and use the
vast information already available from the legal sources highlighted herein above, in
a bid to critically evaluate them in relation to the topic in question. The researcher will
also use a little bit of historical assessment on parental responsibilities and rights of
unmarried fathers and grandparents, and how they were treated in South Africa
before the promulgation and subsequent enactment of the Act. In this historical
analysis the researcher will look at how various courts in South Africa over the years.
In this research the period of research will span from pre-Constitutional Era to the
new Constitutional Dispensation period, the thrust being that of ascertaining whether
principle of the best interest of the child has been realised in South Africa with the
enactment of the Children‘s Act 38 of 2005.

1.4 Conclusion
This introductory chapter of the research report explains the theme of research study
and critically evaluate and analyse the best interest of the child in relationship to the
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parental rights and responsibilities of unmarried fathers and grandparents after the
enactment of the Children‘s Act in South Africa. The qualitative approach nature of
the research report explained. The following chapter of this research will give
historical background of grandparents and unmarried father‘s parental rights and
responsibilities in South Africa.

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CHAPTER 2: HISTORICAL BACKGROUND OF UMARRIED FATHERS AND
GRNADPARENTS

2. INTRODUCTION
This chapter will give the brief history and analysis of the principle of best
interests of the child in South Africa with specific reference to unmarried fathers
and grandparents. It will also provide a short history of legal development in the
field of private law and in family law in particular on the history of unmarried
fathers and grandparents in South Africa over parental rights and responsibilities.

2.1 Historical background

2.1.1 History of the concept of best interests of the child

The principle of best interests of the child was established in South Africa in
around 1900 through case law in the field of Family law. Since then it was not a
right until the ushering in of the new constitution when it was included in the bill of
rights, before that it was just a principle which was applied in solving custody
disputes.6 In the late 19th century this concept was applied in adoptions and child
protection. The concept was then entrenched in the 1996 Constitution on section
28(2).

2.1.2 Common Law Perspective on unmarried fathers and grandparents

From the common law perspective an unmarried father have no relationship with
his child especially born out of wedlock, but only in exceptional circumstances
where he was obliged to maintain the child, this means in actual fact an
unmarried father does not have parental rights and responsibilities. 7 Following
the common law perspective it was held that there was no relationship between
the unmarried father and his children, the only relationship which was recognised
was that of maintaining children.8 Under common law custody and guardianship
for children born out of wedlock was vested in their mother. The unmarried

6
Mills, L ‘Failing Children: The Courts’ Disregard of the Best Interests of the Child in Le Roux v Dey’
2014 SALJ 847 at 847 – 848.
7
Morei, NL ‗A Critical Analysis of the impact of the Constitution on the legal position of
unmarried fathers in South African law’ (LLD Dissertation 2008 North-West University,
Mafikeng Campus) 11.
8
Mailula, D ‗Taking children’s rights seriously: Access to, and custody and guardianship of, a
Childborn out of wedlock‘ 2005 Codicillus 15.

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 fathers were not automatically entitled to custody and guardianship of their
children. Unmarried fathers were seen as strangers without parental powers in
South Africa.9 During this period common law was regulating parental authority
until the enactment of the Guardianship Act.10

On grandparent‘s duty to support, the common law recognise hierarchical

responsibility of supporting grandchildren. From a common law perspective
grandparents should support their grandchildren; if they fail great-grandparents
should in ascending order. This order is considered before those relatives in the
collateral line such as sisters and brothers. In the event of a failing parent,
grandparents are jointly liable to maintain grandchildren.

After the ushering in of the new constitutional dispensation in South Africa the
legal position of unmarried fathers created debates which triggered the need for
new legislation.11 Case law also showing that there is change on the
responsibility of grandparents towards their grandchildren, because now they are
obliged to take care of their grandchildren. This led to various court challenges
which changed the position of unmarried fathers in South Africa. Despite this
change in legislation the question still remaining is whether the best interests of
the child is of greater importance in the drafting of the legislation.

2.2 Case law

2.2.1 FS v JJ 2011 (3) SA 126 (SCA)

In FS v JJ case In this case a child was born while the father (Appellant) and her
mother who died after giving birth were living together. Both the father and the
mother of the child wanted to marry. In this case the first respondent was the
child‘s grandmother (maternal grandmother) and she was married to the second
respondent. The father of the child and the grandparents had a protracted legal
battle over the custody of the Child and several court applications. An appeal was
launched against a chain of court orders which granted custody of the child to
grandparents. On appeal the Supreme Court of Appeal tasked to determine the

9
Paizes JP, The Position of Unmarried Fathers in South Africa: An Investigation with
Reference to a Case Study (LLM Dissertation 2006 University of South Africa) 21.
10
Fraser v Children‘s Court Pretoria North and Others 1996 (BCLR) 1085 (CC).
11
Davel CJ,Skelton A ―Commentary on the Children‘s Act‖ 3-9.

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 best interest of the child, the extent of grandparents‘ duties towards their
grandchildren and the rights of unmarried fathers. On grandparents‘ parental
rights and responsibilities the court held that since 2010 they were governed by
section 23 and 24 of the Children‘s Act, which awarded non-parental
responsibilities and rights to care and guardianship, before this development
grandparent had no inherent parental rights and responsibilities and it was the
discretion of the High Court as the upper guardian of all minors to determine
custody, access and guardianship to the grandparent in relation to parental rights
of the biological parent as long it is in the best interest of the child. The court
further held that the trial court showed bias against the father of the child failing to
consider the best interest of the child. The court ruled in favour of the father and
overruled the decision in favour of the grandparent.

2.2.2 S v M (Centre for Child Law as amicus curiae) 2008 (3) SA 232 (CC)

The case of S v M (Centre for Child Law as amicus curiae) 2008 (3) SA 232 (CC)
is a locus classicus in the principle of child‘s best interests in South Africa. In this
case the Constitutional Court was tasked to decide on the matter concerning the
impact of the constitutional injunction that the best interests of a child are
paramount in all matters concerning the child on sentencing of primary caregivers
of young children. In this case the Mother of three minor children was given
custodial sentence for fraud. On appeal to the Constitutional Court, the court
suspended four year custodial sentence and she was place under correctional
supervision. The court handed down the judgment which carefully considered
best interest of the child. In removing the custodial sentence the court focused on
the child‘s rights to parental care and the best interests of the child principle. The
court held that on sentencing, courts should inquire on the impact the sentence
would have on the right of the children to receive parental care. Although earlier
cases dealt with the best interest of the child, it was not done so explicitly than in
this case. In this case the traditional approach to sentencing in South Africa was
broken in a bid to realise the best interests of the child principle.

In the case of Petersen v Maintenance officer, the court held that paternal
grandparents have the duty to support their grandchildren regardless whether the

13
 children were born out of wedlock.12 In this case the court held grandparents are
obliged to pay maintenance even though the grandchild is an extra marital child.
The court like in other court judgments emphasized that the best interest of the
child is of greater importance.

2.3 Legislative development

2.3.1 Natural Fathers of Children Born out of Wedlock Act 86 of 1997

In 1998 the Natural Fathers of Children Born out of Wedlock Act 86 of 1997 came
into operation, this act was there to deal with procedural fairness regarding the
procedures to be followed by unmarried fathers wanted exercise their parental
rights and responsibility over their children born out of wedlock. Act 86 of 1997
provided that for an unmarried father to have access to his children or access for
guardianship, he was supposed to apply to the High Court so that he can be
granted custody or guardianship, but the court had the discretion based on the
best interests of the child. However, the enactment of Natural Fathers of Children
Born out of Wedlock Act 86 of 1997 changed the position of unmarried fathers in
South Africa because it gave unmarried fathers limited rights towards their
children.13

2.3.2 Children’s Act 38 of 2005

After Act 86 of 1997 there was enactment of the Children‘s Act 38 of 2005.
Section 21 of the Children‘s Act changed again the position of unmarried fathers
in South Africa but some provisions of this act remains a challenge on the
principle of child‘s best interests. Section 21 (1) reads as follows, 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—

12
Petersen v Maintenance Officer, Simon‘s Town Maintenance Court 2004 (2) SA 56 (C).
13
Natural Fathers of Children Born out of Wedlock Act 86 of 1997

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 (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.14

Section 24 of the Act regulates guardianship by order of a court. Grandparents can

use this section to acquire parental care and responsibilities. This section read as
follows: (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 (I), 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.15

2.3.3 Conclusion
Form the historical analysis given one can conclude that the subsequent enactment
of the Children Act, and specifically section 21 and 24 of the act, appear not to give
full effect to section 28(2) of the constitution looking at the requirements which the
unmarried father and grandparents should meet .The next chapter will give a critical
analysis of the Children‘s Act 38 of 2005 on unmarried fathers and grandparents, it

14
Section 21(1) of the Children‘s Act 38 of 2005.
15
Section 24 of the Children‘s Act 38 of 2005.

15
will focus on how the enactment of the act been effective for unmarried fathers and
also grandparents in exercising parental rights and responsibilities in South Africa.

16
 CHAPTER 3: ANALYSIS OF THE CHILDREN’S ACT 38 OF 2005 WITH
REFERENCE TO THE PRINCIPLE OF BEST INTERESTS OF THE CHILD.

3. INTRODUCTION
When the new constitutional dispensation came into play in South Africa section
28(2) provided that the best interests of the child is of paramount importance in
all matters involving the child. However, the enactment of Children‘s Act 38 of
2005 brought in some requirements which make it practically difficult for
grandparents and unmarried father to exercise parental rights and
responsibilities. Therefore this chapter will show how the principle of best interest
of the child in South Africa is facing challenges due to the provisions of the Act.

3.1 Problematic sections of the act in realisation of the best interests of the
child principle

3.1.1 Section 24 of the Act

Section 24 of the Children‘s Act provides that any person with interests in the
care development and wellbeing of the child may apply to the court to be
awarded guardianship. This means a grandparent can make use of this section to
acquire guardianship. The reason of the act in making this provision is not
showing anything to do with the best interest of the child. The problem with this
provision is that the person who wants guardianship must submit reasons to the
court on why the current guardian is not suitable to have guardianship. This legal
provision on its own can disqualify a person who can be in the right position to
serve the best interest of the child after failing to apply to the court and give
reasons. Worse still court application by their nature are expensive and time
consuming, therefore such provision in my view have nothing to do with the
principle of the best interest of the child, and even complying with it does not
guarantee the best interest of the child.

3.1.2 Section 21 of the act

Our courts seem to face a challenge in legislative interpretation on unmarried

father‘s parental rights and responsibilities. Uncertainty remains with the legal
system on what really is ‗permanent life partnership‖ provided by section 21 of

17
 the Act mean.16 Heaton defines permanent life relationship, as something which
is analogous to marriage and which comprise of two persons even these they
17
are not competent to marry one another are living together. This means that
due to lack of the definition the onus now rest on the unmarried father to prove
that his relationship with the mother of the child was permanent partnership so as
to acquire parental rights and responsibility. This gives us the presumption that
although it is the best interest of the child for the unmarried father to be awarded
guardianship failure to prove that they were in permanent life partnership may
jeopardize this sacrosanct principle. After all it‘s not clear that the battle in trying
to interpret the provision is premised on the best interest of the child principle.

In Section 21 of the Act use the term ―reasonable period‖ of contribution towards
the maintenance of the child as a requirement for unmarried fathers to access
parental responsibility and rights. It‘s also not clear if the father can suit the
reasonable period test render him a good candidate or create a presumption that
the best interest of the child principle will be complied with. The use of such terms
creates or leaves a room for creating confusion in that it is open to various
interpretations. The question is how many weeks, days or years are needed to
qualify a reasonable period. I am of the opinion that this term in the act is vague.
Moreover section 21 force unmarried fathers to approach the court so that they
can get a court order which states that they have automatically have acquired
rights, because they need something which they can physically produce to show
that they have rights.18 Here the legislature appeared to be more worried with
what an unmarried father must prove to be given custody instead of looking at the
best interest of the child first.

3.1.3 Section 22 of the act

Section 22 Children‘s Act provides that there should be parental rights and
agreements which an unmarried father should acquire to be awarded parental
rights and responsibilities and this agreement should be drafted in a certain

16
SALRC Issue Paper (Project 100D) Family Disputes Resolution : Care of and Contact with
Children, 2015.
17
Heaton J, “ The Law of Divorce and Dissolution of Life Partnerships in South Africa‖ (2014)
Juta, Cape Town.
18
SALRC (2015) 94.

18
 prescribed manner. It‘s not clear also whether that prescription will guarantee the
best interest of the child. This clearly means that an unmarried father will be
forced to look for someone to do this work, and the only suitable candidate will be
an attorney or an advocate. In reality the question will be how many South
Africans unmarried fathers will have the financial capacity to sponsor such a
process? In my view looking at the levels of poverty we have in most of our
marginalised community‘s legislation have even widened the inequality gap
between unmarried fathers and mothers. I feel that the situation and mammoth
task created for unmarried fathers with this section has nothing to do with the
best interests of the child. To make matters worse the law provides that such
agreements must be registered by the Family Advocate, how many marginalised
members of our society have family advocates? The answer is obvious. The
unmarried father remained where he was prior the enactment of Children‘s Act 38
of 2005. Therefore given the above analysis and discussion the position of
unmarried fathers remains a challenge in South Africa especially looking at the
practicality of implementing the provisions of Children‘s Act which has nothing to
do with the best interest of the child.

3.1. 4 Conclusion

The Children‘s Act provides obstacles for unmarried fathers and grandparents to
acquire parental rights and responsibilities a situation which is against the spirit of
section 28(2) of the constitution. The challenges created by the Act for unmarried
fathers and grandparents to have guardianship does not guarantee the best
interest of the child but just making it difficult for them to exercise their parental
rights and responsibilities . This is a clear indication that grandparents still have
challenges in exercising parental rights and responsibility despite the ushering in
of the new constitutional dispensation. Despite the enactment of the Children‘s
Act 38 of 2005 unmarried fathers in South Africa still face challenges caused by
confusion, misinterpretation and financial implications associated with compliance
to the provision of the Act. These challenges which they face in my view have
nothing do to with the best interest of the child principle in South Africa.

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CHAPTER 4: CONCLUSIONS AND RECOMMENDATIONS

4 INTRODUCTION
Although chapter 28(2) of the constitution provides that the best interests of the
child must take precedence in matters to do with children, the Children‘s Act in
providing conditions for unmarried fathers and grandparents appear to be a
challenge looking at the practical complexities discussed above. Chapter 4
provides the researcher‘s conclusion and this chapter includes the
recommendations on whether unmarried fathers and grandparents can benefit
and exercise parental rights and responsibility in South Africa. After noticing
some challenges and practical complexities in enforcing the rights of unmarried
fathers in South Africa as shown in previous chapters of this research, will
provide some recommendations.

4.1 Recommendations
I recommend that legislature should provide our courts with discretion of looking
at the best interests of the child without going through the provisions of section 21
of the Children‘s Act because they put unnecessary burden for unmarried fathers
to acquire parental responsibilities and rights. And these requirements which
unmarried fathers must comply with first do not guarantee the best interests of
the child.

I recommend the repealing of section 21 of the Children‘s Act 38 of 2005. I feel it

really serves no purpose on the principle of the children‘s best interest, but rather
perpetuate inequality between unmarried fathers and mothers which is against
the tenor and spirit of the constitution.

I recommend the legislature to create a section for grandparents because they

are playing a key role in upbringing of many grandchildren in South Africa.
Creating a section specifically for grandparents is important because appreciating
the role of grandparents will be in the best interests of the child.

I recommend that the legislature should come up with a precise and

straightforward definition of ―permanent life-partnership‖ so as to lesson
confusion in its interpretation and this will reduce lengthy and protracted legal

20
 battles in settling disputes between parties. This lengthy protracted legal battle in
my view is not in the best interests of the child.

Section 21 of the Act provides that consent from the unmarried father is needed
for him to be identified as the father, section 26 further burdens the unmarried
father to apply to for an amendment in the event that the mother of the child
refuses to consent. This by its own is creating challenges for unmarried fathers in
South Africa.

The act provides for a reasonable period which is not clearly defined. This
creates challenges to in interpretation and enforceability. Therefore the
legislature should look into it so that the term is clearly defined in the Act.

I recommend that it‘s now time to capacitate our unmarried fathers and mothers
in South Africa so that they know their parental rights and responsibility. This
means that there is need to provide educational trainings to our members of the
community in regard to parental rights and responsibilities.

On grandparents I am of the opinion that the law should give a section where
grandparents will be recognised, unlike in the current dispensation where they
are categorised as ―any interested person‖. Research has shown that over 60 per
cent of children in South Africa are being taken care of by grandparents.

4.2 Conclusion
In this conclusion I think it should be the discretion of the court in awarding
parental rights than for a father to satisfy other provisions of the act which proved
to be difficult. So the best interest of the child should be a priority in awarding
parental rights and responsibilities than asking the unmarried fathers to comply
with other conditions like those provided in section 21 of the Children‘s Act 38 of
2005.

21
BIBLIOGRAPHY
BOOKS

Boezaart , Child Law in South Africa

Boezaart T (ed), Child Law in South Africa (2 edn, Juta 2017)

Davel and Skelton, Commentary on the Children‘s Act

Davel CJ and Skelton A (eds), Commentary on the Children‘s Act (Juta 2007)

Heaton and Kruger, South African Family Law

Heaton J and Kruger TM, South African Family Law (4 edn, LexisNexis 2015)

Heaton ―The Law of Divorce and Dissolution of Life Partnerships in South Africa‖
Heaton J, ―The Law of Divorce and Dissolution of Life Partnerships in South
Africa‖ (2014) Juta, Cape Town
CASE LAW

FS v JJ
FS v JJ 2011 (3) SA 126 (SCA)

Petersen v Maintenance Officer, Simon‘s Town Maintenance Court

Petersen v Maintenance Officer, Simon‘s Town Maintenance Court 2004 (2)
SA 56 (C)

S v M (Centre for Child Law as amicus curiae)

S v M (Centre for Child Law as amicus curiae) 2008 (3) SA 232 (CC)
DISSERTATIONS AND THESES

Paizes , ‗The Position of Unmarried Fathers in South Africa: An Investigation with

Reference to a Case Study‘
Paizes JP, The Position of Unmarried Fathers in South Africa: An
Investigation with Reference to a Case Study (LLM Dissertation 2006
University of South Africa) 21

22
Morei,‗A Critical Analysis of the impact of the Constitution on the legal position of
unmarried fathers in South African law‘
Morei, NL ‗A Critical Analysis of the impact of the Constitution on the legal
position of unmarried fathers in South African law‘ (LLD Dissertation 2008
North-West University, Mafikeng Campus)
JOURNAL ARTICLES

Heaton (2009) TRW

Heaton J, ‗An Individualised, Contextualised and Child-Centred Determination
of the Child‘s Best Interests, and the Implications of Such as Approach in the
South African Context‘ (2009) 34(2) TRW 1-18

Mills (2014) SALJ

Mills, L ‗Failing Children: The Courts‘ Disregard of the Best Interests of the
Child in Le Roux v Dey‘ 2014 SALJ 847 at 847 – 848
LEGISLATION

Children‘s Act
Children‘s Act 38 of 2005

Constitution of the Republic of South Africa

Constitution of the Republic of South Africa, 1996

Natural Fathers of Children Born out of Wedlock Act

Natural Fathers of Children Born out of Wedlock Act 86 of 1997

23
 RESULTS
Total = 83 / 100 (83%)
 COMMENTS
1 Can't start with a "a"
2 You need to reference this case.