Parental rights and responsibilities, guardianship and same-sex parents

August 1st, 2012

By Tshepo Confidence Mashile

The issue of parental rights and responsibilities in respect of a same-sex relationship was dealt with in the recent judgment of CM v NG (WCC) (unreported case no 8026/2011, 26-4-12) (Gangen AJ).

In this matter the applicant brought an application in terms of ss 23 and 24 of the Children’s Act 38 of 2005 (the Act) for an order granting her full parental rights and responsibilities in respect of a minor child, as contemplated in s 18 of the Act.

Section 18(2) deals with parental rights and responsibilities, being care and contact, guardianship and maintenance. Section 18(3) deals with the duties of guardians, and s 18(4) and (5) deal with the situation where there is more than one guardian.

Section 18 does not limit the persons who may hold parental rights and responsibilities to biological or adoptive parents. Sections 19, 20 and 21 provide the mechanism for biological and married parents to automatically acquire parental rights and responsibilities, to be conferred by agreement on persons having an interest in the care, well-being and development of the child. Section 23 deals with applications for care or contact and s 24 deals with applications for guardianship.

Applications in terms of these sections may be brought by ‘any person having an interest in the care, well-being or development of a child’.

Factual background

The facts in this matter were as follows.

The applicant and the respondent were a same-sex couple who began living together in May 2005. After a year they moved to London, where they lived until June 2010. Both parties, on separate occasions, underwent artificial insemination at the Cape Fertility Clinic. As a result of the procedure, a minor child was born to the respondent on 29 October 2008. The applicant had no biological bond with the child and the respondent, as the birth mother, was recorded as the parent.

In November 2010 the relationship between the parties ended. The applicant continued to have contact with the child after the separation; however, on 12 April 2011 the respondent advised the applicant that she wanted to end her (the applicant’s) contact with the child as she believed such contact was not in the child’s interests. The parties agreed that the child’s primary residence would be with the respondent.

On 13 April the applicant brought the application, which was opposed. On 20 April, by agreement between the parties, the matter was postponed sine die and the family advocate was authorised to investigate the best interests of the child. In May the applicant approached the court for an order to compel the respondent to cooperate with the family advocate and an expert identified by the applicant. The application, which was opposed by the respondent, was postponed to 1 August 2011. An interim contact order was made.

The two questions the court had to determine were:

  • Is an interested person applying in terms of s 23 of the Act entitled to an order for both care and contact?
  • Is an interested party applying in terms of s 24 of the Act for guardianship only entitled thereto if he can show that the existing guardian is not suitable, having regard to the provisions of s 24(3)?

The respondent submitted that, in terms of s 23, the applicant could apply for either care or contact, but not both. She stated that, as the applicant was not applying for the child to be placed in her care, she was therefore only entitled to contact. Furthermore, the respondent submitted that the applicant had not alleged that she (the respondent) was not a suitable guardian and thus she could not apply for guardianship in terms of s 24(3).

Care and contact

In dealing with the issue of whether both care and contact may be awarded to an interested person in terms of s 23, the court referred to s 23(1), which states:

‘Any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in divorce matters or the children’s court for an order granting to the applicant, on such conditions as the court may deem necessary –

(a) contact with the child; or

(b) care of the child.’

The respondent relied on the word ‘or’ between (a) and (b) of s 23(1), which she contended meant that s 23(1)(a) and (b) should be read disjunctively and that the applicant could not therefore apply for both care and contact.

The question for the court was whether this was the intention of the legislature. It referred to Ngcobo and Others v Salimba CC; Ngcobo v Van Rensburg 1999 (2) All SA 491 (A), in which the court found that it is sometimes appropriate to read clauses conjunctively despite the text appearing to set them out disjunctively. In that matter, Olivier JA said:

‘It is unfortunately true that the words “and” and “or” are sometimes inaccurately used by the legislature, and there are many cases in which one of them has been held to be the equivalent of the other (see the remarks of Innes CJ in Barlin v Licensing Court for the Cape 1924 AD at 478). … [I]t seems to me that there must be compelling reasons why the words used by the legislature should be replaced; in casu why “and” should be read to mean “or” or vice versa. The words should be given their ordinary meaning “…unless the context shows or furnishes very strong grounds for presuming that the legislature really intended” that the word not used is the correct one (see Wessels J in Gorman v Knight Central GM Co Ltd 1911 TPD 597 at 610 …). Such grounds will include that if we give “and” or “or” their natural meaning, the interpretation of the section under discussion will be unreasonable, inconsistent, or unjust (see Gorman at 611) or that the result will be absurd (Greyling and Erasmus (Pty) Ltd v Johannesburg Local Road Transportation Board and Others 1982 (4) SA 427 (A) at 444C–D) or, I would add, unconstitutional or contrary to the spirit, purport and objects of the Bill of Rights (sec 39(2) of the 1996 Constitution).’

Both ‘care’ and ‘contact’ are components of ‘parental rights and responsibilities’ in terms of s 18(2). In this regard, the court held: ‘“Care”, as defined in section 1 of the Act, includes, where appropriate and within available means, providing the child with a suitable place to live, proper living conditions and financial support. It also includes safeguarding and protecting the child from abuse and harm. It deals with guarding against any infringement of the child’s rights, directing the child’s education and upbringing, including religious and cultural education and upbringing, and guiding the behaviour of the child in a humane manner. “Care” is also about maintaining a sound relationship with the child, accommodating any special needs that the child may have and ensuring the best interests of the child is the paramount concern in all matters affecting the child.’

The court stated that, if one has regard to this definition of ‘care’, it was clear that the concept of care extended beyond the common law concept of custody (Wheeler v Wheeler 2011 (2) All SA 459 (KZP)). The respondent’s submission – that because the applicant did not seek an order that the minor child be placed in her care, the applicant was only entitled to contact – was not sustainable in light of the definition of ‘care’. Further, the court said that the Wheeler judgment indicated that it was necessary to delineate the specific aspects of care and contact to be allocated to each party where no agreement exists between them in relation to parental responsibilities. The court in the current matter agreed with this view because, if one has regard to the best interests of the child standard, in each case the facts of the matter will determine what is in the child’s best interests.

‘It may be that not all aspects of “care” or “contact” as set out in the definition are applicable to a particular set of facts. The court retains the discretion to delineate the specific aspects of care and contact to be allocated to each party’ (at 34).

(See s 1 of the Act for the definition of ‘contact’.)

The definitions of ‘care’ and ‘contact’ and the Wheeler judgment make it clear that the concepts of ‘care’ and ‘contact’ do not correspond exactly with the concepts of ‘custody’ and ‘access’. The court in this matter added that the concepts were not mutually exclusive – both were components of parental rights and responsibilities in terms of s 18(2).

Here, the court again referred to the Wheeler case, which held, at para 21:

‘Although the two statutory concepts of care and contact correspond broadly with their common law equivalents, the correspondence is not exact. The difference is this: Whilst the statutory concepts include all the elements of the common law concepts, the former are wider than the latter. For example, paragraphs (h) and (i) of the definition of care and paragraph (a) of the definition of contact, were not traditionally components of custody and access respectively’.

The court went on to say that it was relevant that s 23 applied to ‘interested parties’ and was not limited to ‘parents’, and specified that interested parties may include unmarried parents, grandparents, employers of parents or caregivers. The wording of s 28(2), where reference is made to ‘[a]n application in terms of s 23 for the assignment of contact and care in respect of the child to the applicant in terms of that section’ strengthened the interpretation that s 23(1)(a) and (b) should be read conjunctively (at 39).

The court also highlighted the use of the word ‘and’ in s 23’s heading: ‘Assignment of contact and care to interested person by order of court.’

At para 41, the court stated that the intention of the legislature in inserting the word ‘or’ (having regard to the heading of s 23 and the fact that any interested party may apply in terms of s 23) was clearly to indicate that both care and contact would not automatically be awarded to an interested party. This would be consistent with the delineation referred to in the Wheeler judgment.

Further, to interpret the section in a manner that s 23(1)(a) and (b) read disjunctively would render it inconsistent with the objects of the Act and with s 28 of the Constitution. In light of s 9 of the Act and the ‘best interests of the child’ requirement, it may be in the best interests of the child that both ‘care’ and ‘contact’ are awarded to an interested party. In such circumstances, the court as upper guardian should not be limited by a strict interpretation (at 42).

It was accordingly the court’s judgment that an interested party applying in terms of s 23 for parental rights and responsibilities would be entitled to an order for both contact and care where this was in the best interests of the child.


In dealing with the issue of guardianship and the interpretation of s 24(3), the court noted:

‘Applicant is applying for full co-parental responsibilities and rights as contemplated in s 18(2), (3), (4) and (5). Section 18(2)(c) makes reference to parental responsibilities and rights including the responsibility and the right “to act as guardian of the child”. Section 18(4) and (5) deal with the situation where there is more than one guardian.’

The respondent submitted that, as the applicant had not alleged that the respondent was not a suitable guardian in terms of s 24(3), she was not entitled to apply for an order of co-guardianship. In dealing with this issue, the court referred to this subsection, which reads:

‘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.’

The court stated that, while s 23(4) specifically mentions that ‘[t]he granting of care or contact to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child’, s 24(3) points in ‘the opposite direction’ (at 47):

‘Section 24(3) appears to indicate that, in any application for guardianship in respect of a child, the existing guardian loses guardianship’ (at 47).

The court then considered s 29, which deals with court proceedings, and specifically subs (2), which refers to s 24, and appears to support the view that the existing guardian loses guardianship. Section 29(2) states:

‘An application in terms of section 24 for guardianship of a child must contain the reasons why the applicant is not applying for the adoption of the child.’

However, unlike guardianship, the legal consequences of adoption terminate the parental rights and responsibilities of the biological parents (at 48).

Next, the court looked at ss 30 to 32, which deal with the joint exercise of parental rights and responsibilities. Section 30 states:

‘(1) More than one person may hold parental responsibilities and rights in respect of the same child.

(2) When more than one person holds the same parental responsibilities and rights in respect of a child, each of the co-holders may act without the consent of the other co-holder or holders when exercising those responsibilities and rights, except where this Act, any other law or an order of court provides otherwise.

(3) A co-holder of parental responsibilities and rights may not surrender or transfer those responsibilities and rights to another co-holder or any other person, but may by agreement with that other co-holder or person allow the other co-holder or person to exercise any or all of those responsibilities and rights on his or her behalf.

(4) An agreement in terms of subsection (3) does not divest a co-holder of his or her parental responsibilities and rights and that co-holder remains competent and liable to exercise those responsibilities and rights.’

The interpretation of the Act such that guardianship will be lost to another existing guardian would mean that an unmarried father who was unable to obtain parental rights and responsibilities in terms of s 21 (automatically) or in terms of s 22 (by agreement) would have to show that the biological mother was not a suitable guardian. The court said that this would be ‘absurd’ and not in keeping with the objectives of the Act, namely to promote the preservation and strengthening of families and to give effect to the constitutional rights of children, including family care or parental care, and that the best interests of the child are of paramount importance in every matter concerning the child (at 53).

This would be equally applicable to grandparents, the court reasoned:

‘The same absurd outcome will result where grandparents who are the child’s primary caregivers apply for guardianship. It would not be necessary to terminate the parental responsibilities and rights of the biological parents or to show that they are not suitable guardians’ (at 54).

In interpreting this section, the court emphasised two overarching considerations: ‘The High Court as upper guardian of all children’ and the ‘best interests of the child’.

The court referred to Ex Parte Kedar and Another 1993 (1) SA 242 (W), where the court held that, as upper guardian, it was entitled to grant joint guardianship to the parties in the best interests of the child, which did not deprive the existing guardian of her rights and responsibilities. In that case the mother and her employer made an application for joint guardianship in order to enable the child to be enrolled at a school close to the employer’s residence.

The court also referred to s 45(4) and s 9 of the Act. Section 45(4) states: ‘Nothing in this Act shall be construed as limiting the inherent jurisdiction of the High Court as upper guardian of all children,’ while s 9 endorses s 28(2) of the Constitution, which states: ‘A child’s best interests are of paramount importance in every matter concerning the child.’

The court held that it was clear that s 24(3) would only apply where a party applies for exclusive rights to guardianship (sole guardianship). The High Court’s inherent jurisdiction, as upper guardian of children, to grant an application for guardianship to any person without affecting the rights of an existing guardian was therefore not limited by s 24(3) (at 58).


The court accordingly ordered, inter alia, that the applicant and respondent would be co-holders of parental rights and responsibilities in respect of the minor child, as well as co-guardians of the minor child.

Tshepo Confidence Mashile LLB (University of Limpopo) is an attorney at Ngwenya Attorneys in Pretoria.

This article was first published in De Rebus in 2012 (Aug) DR 32.

De Rebus