SOUTH AFRICA Law and Practice Contributed by: Zenobia du Toit and Samantha Lewis, Miller du Toit Cloete Inc
• maintaining a personal relationship with the child; and • if the child lives with someone else, communication on a regular basis with the child. On application by an interested party in terms of Sec - tion 23CA, the court must take into account: • the best interests of the child; • the relationship between the interested party and the child, and any other relevant person and the child; • the degree of commitment that the interested party has shown towards the child; • the extent to which the interested party has con - tributed towards expenses in connection with the birth and maintenance of the child; and • any other fact that should, in the opinion of the court, be taken into account. An order in terms of Section 23, CA does not affect the parental responsibilities and rights that any other person may have in respect of the same child (Section 23 (4), CA). Guardianship Section 24, CA provides for an application by an inter - ested party for guardianship of the child. “Guardianship” is a specific parental responsibility and right in relation to a child (Section 18 (2)(c), CA). Unless otherwise stated, in terms of Section 18 (3), CA, only a guardian of a child may: • administer and safeguard the child’s property and property interests; • assist or represent the child in administrative, con - tractual and other legal matters; or • give or refuse any consent required by law in respect of the child, including in regard to the fol - lowing: (a) consent to the child’s marriage; (b) consent to the child’s adoption; (c) consent to the child’s departure or removal from the Republic; (d) consent to the child’s application for a pass - port; and
(e) consent to the alienation or encumbrance of any immovable property of the child. On application by an interested party for guardian - ship, the court must consider the same factors as it would in terms of Section 23, CA, and, where the child already has a guardian, the interested party must sub - mit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child (Section 24 (3), CA). In RC v SC 2023 4 SA 231 (GJ), a former life partner successfully applied for rights of care, contact and co-guardianship of his former life partner’s biologi - cal child. The court held that as upper guardian of all children, it could, in the best interests of a child, grant joint guardianship without having to find that the exist - ing guardian was unsuitable. 1.5 Relevance of Marriage at Point of Conception or Birth There is no differentiation between heterosexual and same-sex couples during the process of obtaining parental responsibility. 1.7 Adoption In addition to what is set out in 1.4 Requirements for Non-Genetic Parents , prior to an application being made to court for an adoption order, it must first be determined that the proposed adoption is in the best interests of the child and that the child is adoptable (Section 230 (1), CA). Section 230 (3), CA provides that a child is adoptable in the following circumstances: • the child is an orphan and has no guardian or car - egiver who is willing to adopt the child; • the whereabouts of the child’s parent or guardian cannot be established; • the child has been abandoned; • the child’s parent or guardian has abused or delib - erately neglected the child, or has allowed the child to be abused or deliberately neglected; See 1.3 Requirements for Fathers . 1.6 Same-Sex Relationships
115 CHAMBERS.COM
Powered by FlippingBook