In the case of MM v AV 2011 ZAWCHC 425, the mother of a child adopted the stance that she did not wish to co-parent their minor child with the father. In the past however she did facilitate the father’s involvement in the child’’s life to a significant degree since the time of his birth. The court was of the view that it was not open to the mother, in the absence of the father failing to act in the child’s best interests, to simply elect not to co-parent with him. The mother’s primary objection and opposition in this matter was that she could not be ‘forced’ to enter into a parent plan with the father on the basis sought by him. In her affidavit she claimed that she did not like the father and that she did not trust him and that in those circumstances she should not be compelled to co-parent the child with him.
The parties met one night in August 1999. Their son, was conceived that night and the parties’ respective versions of events surrounding the child’s conception were divergent. According to the father he had no recollection of the events of that night due to his state of intoxication and had in fact no recollection of having had sexual intercourse with the mother on that night. He stated that the only proof he had that the parties indeed had sexual intercourse on the night in question is the outcome of paternity tests conducted on the child, which established the father to be the child’s biological father.
The mother stated that she had no recollection of having had sexual intercourse with the father due to her intoxicated and/or drugged state and that she could not have consented to sexual intercourse in the circumstances. Because, so she contended, the father could remember having sexual intercourse with her, he must have been in a position to know that she was not able to consent to sexual intercourse with him: accordingly she stated that she was raped and that the father could therefore not acquire parental rights and responsibilities in respect of the child as contemplated in s 21 of the Children’s Act 38 of 2005 (‘the Children’s Act) as read with the definition of ‘parent’ contained in s 1 of the Children’s Act. The allegation of rape was raised for the first time by the respondent on 1 February 2010 when the child was 9 years old, shortly prior to the father commencing proceedings in court on 12 February 2010 for the recognition and definition of his parental rights and responsibilities in respect of the child.
Prior to the implementation of the Natural Fathers of Children Born out of Wedlock Act, 86 of 1997 (“the Natural Fathers Act’), such fathers were obliged, in terms of the common law, to apply to the High Court, as upper guardian of all minor children, to be granted rights in respect of a child born out of wedlock. In the event of there being a dispute, the rights to be conferred on such a father and the manner in which these rights were to be exercised were determined by the court. Such an order was essentially a ‘parent plan’ setting out how parental rights were to be exercised.
With the implementation of the Natural Fathers Act, these fathers were afforded, by statute, locus standi to apply for certain rights in respect of their children born out of wedlock. Again, in the event of there not being an agreement with the mother of the child, the court was required to determine which rights should be granted to the father. Similarly, if there was a dispute in respect of the manner in which any of such rights were to be exercised, the court made a determination and gave an order setting out the manner in which such rights were to be implemented; again, a ‘plan’ setting out how parental rights were to be exercised.
Section 21 of the Children’s Act similarly makes provision for parents of children born out of wedlock to agree upon a parent plan. Where the parties are not able to agree either directly or through mediation then either party has the right to approach court in order to determine how their parental rights and responsibilities are to be exercised.
Accordingly, the provisions of s 21 of the Children’s Act are nothing new: they simply serve to ‘codify’ the legal position which previously pertained. What is important to note is that this is entirely consistent with the ‘best interests of the child’ principle enshrined in the Constitution of the Republic of South Africa. Section 28 of the Constitution stipulates that in all matters concerning a child it is the child’s best interests which are paramount and that every child has the right to parental care. In my view those provisions recognise and moreover dictate that a court as upper guardian of all minor children must place the interests of the child and the rights of the child above those of his or her parents.
In matters pertaining to children, Section 28(2) of the Constitution of the Republic of South Africa reads as follows:
’2. A child’s best interests are of paramount importance in every matter concerning the child.’
The concept that the interests of the child are of paramount consideration is also contained in Article 3(1) of the United Nations Convention on the rights of the child. The convention was adopted unanimously by the general assembly of the United Nations on 20 November 1989. South Africa became a signatory to the convention on 29 January 1993 and it was ratified by South Africa on 16 June 1995.
The ‘best interests of the child’ principle has underpinned both statutory provisions pertaining to children as well as our case law and is retained in the Children’s Act. In fact, the Children’s Act goes further and places significant emphasis on child participation in decisions in respect of their care and wellbeing.
It was stated in Terblanche v Terblanche 1992 (1) SA 502 (W) at 504C-D that the court has ‘extremely wide powers in establishing what is in the best interests of minor or dependent children. It is not bound by procedural strictures or by the limitations of the evidence presented or contentions advanced by the respective parties. It may in fact have recourse to any source of information, of whatever nature, which may be able to assist it in resolving custody and related disputes’.
In September v Karriem 1959 (3) SA 687 (C) at 689A Herbstein, A J P stated:
‘If the Court is of the opinion that it should interfere with the rights of the parents, because the interests of the children demand such interference, it should be at large to act in the manner best fitted to further such interests.’
He stated further ‘It seems to me that the Court as upper guardian should be given as complete a picture of the child and its needs as possible. Nothing of relevance should be excluded. For while certain aspects taken separately might appear to be of no real importance, in combination they might build up a strong case in favour of one or other conclusion.’
In E v S 1995 (3) SA 571 (A) at 581 A, Howie JA referred to Re KD (a minor)(ward: termination of access)  1 All ER 577 (HL) at 588g-j, and quoted with approval:
‘Parenthood, in most civilised societies, is generally conceived as conferring on parents the exclusive privilege of ordering, within the family, the upbringing of children of tender age, with all that that entails. That is a privilege, which, if interfered with without authority, would be protected by the courts, but it is a privilege circumscribed by many limitations imposed both by the general law and, where the circumstances demand, by the courts or the authorities on whom the Legislature has imposed the duty of supervising the welfare of children and young persons. When the jurisdiction of the court is invoked for the protection of the child the parental privileges do not terminate. They do however, become immediately subservient to the paramount consideration which the court has always in mind, that is to say the welfare of the child.’
And further (in reference to rights of contact), that:
‘Whatever the position of the parent may be as a matter of law, and it matters not whether he or she is described as having a ‘right’ in law or a ‘claim’ by the law of nature or as a matter of common sense, it is perfectly clear that any ‘right’ vested in him or her must yield to the dictates of the welfare of the child.’
In Bobera’s Law of Persons at page 319 footnote 17 it is stated that:
‘It has long been recognised in South Africa that the parental power (or “natural guardianship”) is in fact concerned more with duties and responsibilities of parents than with parents’ rights and powers – the modern emphasis in this regard being on the rights and interests of children rather than parents’.
The law is thus clear: it is the interests of the child which are paramount in all matters concerning a child and the interests of the child take preference over the interests of the parents.
In South Africa, and sadly by virtue of its appalling history of human rights failures and the consequent legacy of social and societal disadvantages, it seems to me that the protection and promotion of the rights of children is all important. When these most vulnerable members of our society are protected by our courts so that they can have, inter alia, proper parental care it will follow (at least in the majority of cases) that as adults they will in turn inculcate the same values in their own children. If we ‘get it right’ with our children we will be making a valuable contribution to our constitutional vision of a society based on human dignity, rights and freedoms.
Cost orders in child matters
It has been held that in disputes relating to children, it may not be appropriate to make a costs order adverse to either party because of the predominant interests of the child involved. King J (as he then was) in McCall v McCall 1994 (3) SA 201 (CPD) at 209B-C stated:
“As I have said, both parents have, in contesting this case, acted in what they believed to be in the best interests of their child. There is no winner and no loser. There are two concerned parents. I intend to make no order as to costs. The effect of this is that each party will bear their own costs.”
In Bethell v Bland & Others 1996 (4) 472 (W) at 475E-I Wunsch J considered that the correct approach would be that generally speaking a successful litigant would be entitled to his or her costs. He states further:
“1. Generally speaking, a successful litigant is entitled to his or her costs.
2. While it is quite true that a custody dispute should not be seen as an adversarial contest in the ordinary sense but rather as an enquiry into the best interests of the child, it cannot be denied that in most cases the litigants are advancing their own preferences and seeking satisfaction of their love of the child. Often, too, the papers contain many attacks on the character and conduct of the opponents.
3. On the other hand it is also a consideration that a party should not be discouraged from putting up a case which he or she, on broadly reasonable grounds, thinks to be in the interests of the child for fear of having costs awarded against him or her if unsuccessful. By the same token, a party who is, on what turn out to be good grounds, confident that his or her case will prevail, should not be discouraged from taking or resisting actions because of the costs which he or she will incur.
4. However bona fide and concerned a party may be, if his or her opponent’s judgment of the issue prevails, it is not, in the absence of circumstances justifying it, fair that the opponent should be mulcted in his or her own costs.”
In this matter the court did implement a parenting plan and made a cost order against the Respondent mother.