24/04/2025
In South African law the issue involving children revolves around the principle enshrined in section 28 (2) of the Constitution of South Africa which relates to the childās best interest. The principle has been enacted in the Childrenās Act 38 of 2005 as being of
paramount importance in anything involving a child.
A mother and father of a child become the natural caregivers by birth. However, this statement is based on assumption that they have equal rights and responsibilities and are married or are life partners. The traditional parental role places the mother as the sole inherent nurturer of a child after separation by default. Section 19 of the Childrenās Act embodies this stereotype position in societies as mothers are not required to be married. On the other hand, unmarried fathers are not favoured by the Childrenās Act, this is seen in section 21. In comparison of section 19 and 21 of the
Act the father must rely on section 7 of the said Act to prove on a balance of probabilities a case to obtain rights over the child. A Fatherās rights are conferred upon him by common law and customary law and nothing in the legislation.
In the case of V v V 1998 (4) SA 169 C the Court recognized the potential for fathers to be suitable custodians of young children, shifting away from the bias towards mothers in custody matters. The case highlighted the importance of considering the best interests of the child rather than relying on outdated assumptions about parental roles. The court acknowledged the changing societal landscape and the evolving understanding of parenting, emphasizing that a fatherās capacity to care for a child
should be assessed based on his individual circumstances and abilities, not his gender. This case is significant for its contribution to the development of South African family law, demonstrating a move towards a more gender-neutral approach to determining the custody arrangements. In paragraph 176 supra āthe old position where the custody of young children was invariably granted to mothers has changed. As the young children are concerned,
the pendulum has swung to accommodate the possibility of a father being a suitable custodian parent to the young childā.
It is therefore envisaged that primary residence and contact were not to be given on pre-conceived notions, assumptions or judicial preferences but must be the result of a well-considered decision based on an individual and full investigation.
Further caselaw that has impact on minor children is Chodree v Vally 1996 (2) SA 28 (W) in the Headnote the Court is of the opinion that short-term factors must be considered alongside long-term benefits to be obtained in each specific case. With the changing societal norms mothers now have careers too and they manage
child upbringing with the assistance of aftercare, domestic workers and or family members. Which then implies that the pendulum can be set at par at it applies to both parents. Just like in Van Pletzen v Van Pletzen 1998 (4) SA (O) at 101 B-D/E stated that mothering is not only a component of a womanās being, but also part of a manās
being, and that a father, depending on the circumstances, possesses the capacity and capability to exercise custody over a child as well as a mother.
To sum up, separation of parents will cause tension and might yield resent as children grow up thinking of things that they were deprived as parents took turns in making decisions. Another parent ends up not performing to the best of their abilities
because of hiccups and frustrations that are possible in an arrangement as people grow older and drift towards new spaces and environments.
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