As with any marriage, relationship or romantic partnership, there is no guarantee that it will last until death do you part. For a marriage, a divorce is what is needed if the marriage has irretrievably broken down. Much has been written on the issue of divorces in relation to heterosexual marriages where the Marriage Act find application. The same applies to customary marriages. What about same-sex, or gay and lesbian couples who are married and want to get divorced? Does the law cater for such marriages? And how are they different from heterosexual divorces. Before we deal with the dissolution aspect of a same-sex marriage, let us first deal with the validity and legality of the same-sex marriage itself.
This sounds like a simple question. However, without presuming too much, let us unpack the law. Here we will look at the Civil Union Act 17 of 2006. It is this Act of Parliament that made same-sex marriages legal in South Africa.
According to the Civil Union Act, a “civil union” means the voluntary union of two persons who are both 18 years of age or older which is solemnised and registered by way of either a marriage or a civil partnership, in accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others“.
Furthermore, according to the Act, a “civil union partner” means a spouse in a marriage or a partner in a civil partnership. as the case may be, concluded in terms of this Act“.
From the aforementioned, it is clear that there are two types of civil unions, the one is a marriage, and the other is a civil partnership.
Now let us have a look at what the legal requirements are for a gay or lesbian couple to enter into a same-sex marriage as provided for in the Civil Union Act.
The requirements for the solemnisation and registration of a civil union are as follows as provided for in the Act:
“8. (1) A person may only be a spouse or partner in one marriage or civil partnership.
( 2 ) A person in a civil union may not conclude a marriage under the Marriage Act or the Customary Marriages Act.
(3) A person who is married under the Marriage Act or the Customary Marriages Act may not register a civil union.
(4) A prospective civil union partner who has previously been married under the Marriage Act or Customary Marriages Act or registered as a spouse in a marriage or a partner in a civil partnership under this Act, must present a certified copy of the divorce order, or death certificate of the former spouse or partner, as the case may be, to the marriage officer as proof that the previous marriage or civil union has been terminated.
( 5 ) The marriage officer may not proceed with the solemnisation and registration of the civil union unless in possession of the relevant documentation referred to in subsection ( 4 ).
( 6 ) A civil union may only be registered by prospective civil union partners who would apart from the fact that they are of the same sex, not be prohibited by law from as the case may be, at any given time, concluding a marriage under the Marriage Act or Customary Marriages Act.”
The aforementioned clauses basically say you should not be married, and there should be no legal reason why you cannot get married.
Should a gay or lesbian couple married in terms of the Civil Union Act wish to get divorced, the procedure is the same as would be in a marriage solemnised in terms of the Marriage Act. The legal documents, however, would be slightly different. For example, in the case of a gay marriage, where it comes to the type of civil marriage, and children, the following clauses would be inserted in the Particulars of Claim:
Otherwise, the procedure would be exactly the same, save for in a gay marriage, only the word he would be used to describe the spouse and the word she, for a lesbian couple.
If your same-sex marriage has irretrievably broken down, and you wish to get divorced, feel free to contact our offices for assistance. Based on our experience with same-sex divorces, additional knowledge on the law may be required when it comes to preparing the legal documents.
Bail, in simple terms, entails being released from incarceration, either by the police, or prison authorities, pending a determination of guilt, or innocence in relation to a crime. And when found guilty, bail can be granted pending the imposition of the appropriate sentence. You can also get bail pending appeal proceedings.
If you require a lawyer (advocate and/or attorney) for an after-hours bail application at the police station, call us on 021 424 3287 during our office hours, or make use of our WhatsApp line, by clicking the icon. Save the number and send it to your friend.
Many people get arrested during the day or night and have to wait sometime before they appear in Court where the issue of bail can be resolved. Should the person be arrested, it is possible that he or she obtain police bail or after hours bail through a court prosecutor.
Under certain circumstance, a police officer can give bail to an arrested person. These are usually for relatively minor criminal offenses.
A prosecutor can also give a person bail after hours for Schedule 7 Offenses. What would happen is that the prosecutor would be called to the police station and consider whether bail should be granted. Some people refer to this process and night court.
Should bail be granted at the police station either via police bail or prosecutorial bail, the accused would then have to appear in court on the date advised.
It is advisable to obtain the services of a legal practitioner should you wish to make use of police bail or prosecutorial bail. Give us a call and we can set you up. Now let us unpack the law.
The relevant law is as follows:
(1) (a) An accused who is in custody in respect of any offence, other than an offence referred to in Part II or Part III of Schedule 2 may, before his or her first appearance in a lower court, be released on bail in respect of such offence by any police official of or above the rank of non-commissioned officer, in consultation with the police official charged with the investigation, if the accused deposits at the police station the sum of money determined by such police official.
[Para. (a) substituted by s. 3 of Act 26 of 1987, by s. 1 of Act 126
of 1992 and by s. 2 of Act 75 of 1995.]
(b) The police official referred to in paragraph (a) shall, at the time of releasing the accused on bail, complete and hand to the accused a recognizance on which a receipt shall be given for the sum of money deposited as bail and on which the offence in respect of which the bail is granted and the place, date and time of the trial of the accused are entered.
(c) The said police official shall forthwith forward a duplicate original of such recognizance to the clerk of the court which has jurisdiction.
(2) Bail granted under this section shall, if it is of force at the time of the first appearance of the accused in a lower court, but subject to the provisions of section 62, remain in force after such appearance in the same manner as bail granted by the court under section 60 at the time of such first appearance.
(1) An attorney-general, or a prosecutor authorised thereto in writing by the attorney-general concerned, may, in respect of the offences referred to in Schedule 7 and in consultation with the police official charged with the investigation, authorise the release of an accused on bail.
(2) For the purposes of exercising the functions contemplated in subsections (1) and (3) an attorney-general may, after consultation with the Minister, issue directives.
(3) The effect of bail granted in terms of this section is that the person who is in custody shall be released from custody-
(a) upon payment of, or the furnishing of a guarantee to pay, the sum of money determined for his or her bail at his or her place of detention contemplated in section 50 (1) (a);
(b) subject to reasonable conditions imposed by the attorney-general or prosecutor concerned; or
(c) the payment of such sum of money or the furnishing of such guarantee to pay and the imposition of such conditions.
(4) An accused released in terms of subsection (3) shall appear on the first court day at the court and at the time determined by the attorney-general or prosecutor concerned and the release shall endure until he or she so appears before the court on the first court day.
(5) The court before which a person appears in terms of subsection (4)-
(a) may extend the bail on the same conditions or amend such conditions or add further conditions as contemplated in section 62; or
(b) shall, if the court does not deem it appropriate to exercise the powers contemplated in paragraph (a), consider the bail application and, in considering such application, the court has the jurisdiction relating to the powers, functions and duties in respect of bail proceedings in terms of section 60.
(6) The provisions of section 64 with regard to the recording of bail proceedings by a court apply, with the necessary changes, in respect of bail granted in terms of this section.
(7) For all purposes of this Act, but subject to the provisions of this section, bail granted in terms of this section shall be regarded as bail granted by a court in terms of section 60.
[S. 59A inserted by s. 3 of Act 85 of 1997.]
[Schedule 2 amended by s. 5 of Act 126 of 1992. by s. 15 of Act
62 of 2000 and by s. 68 of Act 32 of 2007.]
Any offence under any law relating to the illicit possession, conveyance or supply of dependence-producing drugs or intoxicating liquor.
Any offence under any law relating to the illicit dealing in or possession of precious metals or precious stones.
Breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an offence.
Theft, whether under the common law or a statutory provisIon.
(Sections 59, 72)
[Part II amended by s. 15 of Act 62 of 2000 and substituted by
s. 66 of Act 32 of 2007.]
Rape or compelled rape as contemplated In sections 3 or 4 Of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
Any sexual offence against a child or a person who is mentally disabled as contemplated in Part 2 of Chapter 3 or the whole of Chapter 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively trafficking in persons for sexual purposes by a person contemplated In section, 71 (1) or (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
Assault when a dangerous wound is inflicted.
Breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an offence.
Theft, whether under the common law or a statutory provision, receiving stolen property knowing it to have been stolen, fraud, forgery or uttering a forged document knowing it to have been forged, in each case if the amount or value involved in the offence exceeds R2500.
Any offence under any law relating to the illicit dealing in or possession of precious metals or precious stones.
Any offence under any law relating to the illicit-
dagga exceeding 115 grams; or
any other dependence-producing drugs; or
conveyance or supply of dependence-producing drugs.
Any offence relating to the coinage.
Any conspiracy, incitement or attempt to commit any offence referred
to in this Part.
(Sections 59, 61, 72, 184, 185, 189)
(Part III substituted by s. 5 of Act 126 of 1992.)
Housebreaking, whether under the common law or a statutory provision, with intent to commit an offence.
Contravention of the provisions of section 1 and 1Aof the Intimidation Act. 1982 (Act 72 of 1982).
Any conspiracy, incitement or attempt to commit any at the above-mentioned offences.
(Sections 58 and 60 (11) and (11A) and Schedule 6)
[Schedule 5 added by s. 14 of Act 75 of 1995, substituted by s. 9
of Act 85 of 1997, amended by s. 36 (1) of Act 12 of 2004 and by
s. 27 (1) of Act 33 of 2004 and substituted by s. 68 of
Act 32 of 2007.]
Attempted murder involving the infliction of grievous bodily harm.
Rape or compelled rape a$ contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, in circumstances other than those referred to in Schedule 6.
Any trafficking related offence by a commercial carrier as contemplated in section 71 (6) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
Any offence referred to in section 13 (f) of the Drugs and Drug Trafficking Act, 1992 (Act 140 of 1992), if it is alleged that-
the value of the dependence-producing substance in question is more than R50 000,00; or
the value of the dependence-producing substance in question is more than R10 000,00 and that the offence was committed by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy; or
the offence was committed by any law enforcement officer.
Any offence relating to the dealing in or smuggling of ammunition, firearms, explosives or armament, or the possession of an automatic or semi-automatic firearm, explosives or armament.
Any offence in contravention of section 36 of the Arms and Ammunition Act, 1969 (Act 75 of 1969), on account of being in possession of more than 1 000 rounds of ammunition intended for firing in an arm contemplated in section 39 (2) (a) (i) of that Act.
Any offence relating to exchange control, extortion, fraud, forgery, uttering, theft, or any offence referred to in Part 1 to 4, or section 17, 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004-
involving amounts of more than R500000,00; or
involving amounts of more than R100 000,00, if it is alleged that the offence was committed by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy; or
if it is alleged that the offence was committed by any law enforcement officer-
involving amounts of more than R10 000,00; or
as a member of a group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy.
Sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in section 5, 6 or 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively on a child under the age of 16 years.
An offence referred to in Schedule 1-
and the accused has previously been convicted of an offence referred to in Schedule 1; or
which was allegedly committed whilst he or she was released on bail in respect of an offence referred to in Schedule 1.
The offences referred to in section 4 (2) or (3), 13 or 14 (in so far as it relates to the aforementioned sections) of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004.
(Sections 50 (6),58 and 60 (11) and (11A))
[Schedule 6 added by s. 10 of Act 85 of 1997, amended by
s. 27 (1) of Act 33 of 2004 and substituted by s. 68 of
Act 32 of 2007.]
it was planned or premeditated;
the victim was-
a law enforcement officer performing his or her functions as such, whether on duty or not, or a law enforcement officer who was killed by virtue of his or her holding such a position; or
a person who has given or was likely to give material evidence with reference to any offence referred to in Schedule 1;
the death of the victim was caused by the accused in committing or attempting to commit or after having committed or having attempted to commit one of the following offences,
Rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively; or
robbery with aggravating circumstances; or
the offence was committed by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy.
Rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively-
in circumstances where the victim was raped more than once, whether by the accused or by any co-perpetrator or accomplice;
by more than one person, where such persons acted in the execution or furtherance of a common purpose or conspiracy;
by a person who is charged with having committed two or more offences of rape; or
(by a person, knowing that he has the acquired immune deficiency syndrome or the human immunodeficiency virus;
where the victim-
is a person under the age of 16 years;
is a physically disabled person who, due to his or her physical disability, is rendered particularly vulnerable; or
is a person who is mentally disabled as contemplated in section 1 of the Criminal law (Sexual Offences and Related Matters) Amendment Act, 2007;
involving the infliction of grievous bodily harm.
Trafficking in persons for sexual purposes by a person as contemplated in section 71 (1) or (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
the use by the accused or any co-perpetrators or participants of a firearm;
the infliction of grievous bodily harm by the accused or any of the co-perpetrators or participants; or
the taking of a motor vehicle.
An offence referred to in Schedule 5-
and the accused has previously been convicted of an offence referred to in Schedule 5 or this Schedule; or
which was allegedly committed whilst he or she was released on bail in respect of an offence referred to in Schedule 5 or this Schedule.
The offences referred to in section 2, 3 (2) (a), 4 (1), 5, 6, 7, 8, 9, 10 or 14 (in so far as it relates to the aforementioned sections) of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004, section 2 (1) and (2) of the Civil Aviation Offences Act, 1972 (Act 10 of 1972), section 26 (1) (j) of the Non-Proliferation of Weapons of Mass Destruction Act, 1993 (Act 87 of 1993) and
section 56 (1) (h) of the Nuclear Energy Act, 1999 (Act 46 of 1999).
[Schedule 7 added by s. 10 of Act 85 of 1997, amended by s. 10
of Act 34 of 1998 and by s. 16 of Act 62 of 2000 and substituted
by s. 68 of Act 32 of 2007.]
Bestiality as contemplated in section 13 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
Assault, involving the infliction of grievous bodily harm.
Housebreaking, whether under the common law or a statutory provision, with intent to commit an offence.
Malicious injury to property.
Robbery, other than a robbery with aggravating circumstances, if the amount involved in the offence does not exceed R20 000,00.
Theft and any offence referred to in section 264 (1) (a), (b) and (c), if the amount involved in the offence does not exceed R20 000,00.
Any offence in terms of any law relating to the illicit possession of dependence-producing drugs.
Any offence relating to extortion, fraud, forgery or uttering if the amount of value involved in the offence does not exceed R20 000,00.
Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.
Are you intending on relocating to any one of the popular destination countries below?
Are there possible consent issues regarding passports, and relocation or emigration? If you answered yes, have a look at the articles on this website that you may of use.
What does Child Relocation, Passport disputes, Custody issues, and surname changes have in common? They are all matters which a court of law resolves if the parties cannot do so. Other than child custody issues that can be resolved by the Children’s Court, disputes in relation to Child Relocation, Passport Disputes and Surname changes for minor children are dealt with in the various Provincial High Courts in South Africa where the child ore parties reside.
Much has been written in this website regarding child custody, relocation of minor children, and passport disputes. They have however not been dealt with simultaneously in one article. This is what this article intends to do. It basically provides the intertwined application of the law. With the rise in relocation and disputes regarding care and contact in South Africa, this article would be useful for many parents.
However, if you wish to view some of the articles already written on the aforementioned topics, feel free to click on the following links:
If you wish to emigrate from South Africa, there are many places in this world to consider. Some would be more ideal than others. But it all depends on the reason for the relocation. Here is a list of the top countries South Africans and emigrating to:
If you intend to relocate to a country or region not mentioned above, read on, this article still applies to you.
You guessed it, this article will commence with the fundamental principle in our law – the child’s best interests. This principle is an international principle, applied all over the world. Locally, the principle is found in our Constitution, Act 108 of 1996 and in the Children’s Act 38 of 2005. Let us unpack it.
Section 28 (2) of our Constitution states that “[a] child’s best interests are of paramount importance in every matter concerning the child.”
Furthermore, section 9 of the Children’s Act 38 of 2005 states that “[i]n all matters concerning the care, protection, and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.”
There you have it. The golden thread that should weave through every matter, application or dispute when it comes to children is – priority should be given to their best interests. Of course, this makes sense. Children are our future and a vulnerable sector of our society. Parents are the ones with the issues, and the children are innocent bystanders affected by all this noise. The law and society should, therefore, ensure that they are protected and given the best deal in the equation. Now let us move on to the topic of child custody, followed by passport applications, and then relocation. Lastly, we deal with surname changes of minor children.
This is where the disputes usually begin. However, not many parents understand the concept of child custody. The legal term now used for custody is care. This was introduced in the Children’s Act 38 of 2005. However, for the sake of ease, we shall continue to refer to it as custody in this legal article. We receive many queries where a parent is actually primary caring for the child, but still, want “custody” over the child. The reality of the matter is that that parent already has “custody” over the child as the child is primary living with him or her. What such parent most probably want is a court order confirming that. The reason for that varies but is mostly for stability and peace of mind.
The reason for dealing with child custody is that it has a direct bearing on disputes regarding relocation, passport applications, and surname changes. It is usually the parent who is exercising primary care who approaches us regarding the latter issues. They would want to relocate, apply for a passport or change the minor child’s surname, but the other parent does not want to consent.
Obviously, it is possible for a parent who does not have the primary care to want to try and relocate with a child. This would hold water if it would be in the child’s best interests. And if the child does not have a passport, the non-custodial parent may want to make an application to the court to dispense with the other parent’s consent. And with relocation, changing a child’s surname to that of the parent who the child will be relocating with, may be a good idea. Now let’s have a look on the legalities of a passport application, relocation and a surname change for a minor child.
Our starting point is our Constitution. It affords everyone the following rights:
As mentioned earlier, the usual scenario is that a parent who has “custody” over the minor child would like to leave the country with the minor child. This can be for a holiday, or to visit a family member. This is the easy one, as the law affords every citizen the right to a passport. However, the unfortunate issue is that according to section 18(5) of the Children’s Act, all guardians of a child must consent for a minor child’s passport application. However, let’s say the child was born out of wedlock, the unfortunate issue is that the Department of Home Affairs has no idea if the father has guardianship or not. Therefore, it seems that they always ask for the father’s consent.
Now, if the other parent does not want to visit the Department of Home Affairs to give the necessary consent for a passport, an application would have to be made to the Court as provided for in section 18(5) of the Children’s Act. This would be to dispense with the requirement that the co-guardian’s consent is required. The Court would make a decision as to what is in the child’s best interests. In our view, considering the relevant sections in the Constitution mentioned earlier, such an application would more than likely be successful. Now let us move to relocation which is almost never straightforward.
There are many reasons why a parent needs to relocate to another country. One reason could be for better employment opportunities. The other reason could be due to marriage. If you have a child, you would want to take the child with you. Relocation is never an easy legal issue. For one, it means that a parent who regularly had contact to his or her child, would not only see the child via electronic means only, for example, Skype Video, but only physically, every few years.
As mentioned earlier on, what the law looks at is what is in the child’s best interests. This is a difficult task for all concerned. For one, if the other parent refuses to consent, the court would then have to override such consent. But if the court does not do so, the question is, would the child be better cared for by the non-custodial parent. That is most probably the argument that the non-custodial parent would bring to the table. “The child must stay in South Africa, and I will look after her”.
At the end of the day, after the court heard the arguments for the mother, and the father and all the experts involved, if any, the court would have to make the decision as to whether relocation with the parent would be in the child’s best interest. Deciding factors would be better living conditions and education for the minor child. Each case is different. But as always, what is best for the child would win the day.
Surname changes for minor children can be a bit tricky. Firstly, the Department of Home Affairs would require both parents to consent to any change. However, the decision is left up to the Director-General of Home Affairs to make that decision. A good reason for a surname change of a minor child is that he or she does not have the surname of his or her primary caregiver. Due to the fact that the minor child does not have the surname of the primary caregiver, issues could arise at school, when traveling, or socially. In such a case, a change of the minor child’s surname may be warranted.
If the other parent does not consent to the application for a surname change, then the Court needs to be approached. The Court would have to decide whether or not the other parent is reasonable in their refusal and acting in the child’s best interests. If it is in the child’s best interest that an application for a surname change is made, then the Court would order it.
If you require any advice on any of the aforementioned issues, feel free to contact us to set up a consultation.
Parents have a legal obligation to maintain their children. The same applies to spouses who have to maintain each other, and so on. This obligation should be exercised naturally. In other words, even if a parent did not know of the law enforcing child support, he or she should have a natural inclination to do so. Unfortunately, the true reality is that it is not the case. Countless parents are taken to the maintenance court every year due to not supporting, or inadequately supporting their children. And to be fair, there are parents who abuse the maintenance process who takes the parent to court who is already adequately contributing. Now, for the maintenance enforcement process to function, working mechanisms need to be in place. This is where the Maintenance Act 99 of 1998, and the Maintenance Amendment Act, 9 of 2015 come into play. Read on to learn more.
Since or about 1998, the Maintenance Act 99 of 1998 was the main piece of legislation that was used for parents to obtain maintenance for their children. Other legal tools would be making an application in terms of High Court Rule 43 for interim maintenance in a divorce matter, and the Divorce Court would make a final order. In the Magistrate’s Court, rule 58 would apply. Then there is the Domestic Violence Act, which allows for emergency monetary relief. Notwithstanding the Maintenance Act being a great and useful tool, as time changed, so too did it have to do the same.
On 5 January 2018, the entire Maintenance Amendment Act came into operation. In our view, it placed some sharp claws into the already existing Maintenance Act. Some changes to the Maintenance Act were cosmetic in a sense and other changes (or additions) toughened up the law.
Sections 2, 11 and 13(b) of the Amendment Act, which is dealt with below, were not initially in operation due to it requiring Regulations to be created to make it work. It is however now in place. To make things easy, we unpacked the Maintenance Amendment Act (Act No.9 of 2015) and give our explanation as to how it better serves South Africans.
Below we provide a summary of the amendments we find relevant to mention, as well as the actual amendments for your reference. You, therefore, do not need to read the entire article, unless you have to use it for court or other purposes. For your convenience, just click on the relevant summary below and it will jump to the relevant section of the Act further below.
(a) that any person legally liable to maintain any other person fails to maintain the latter person; [or]
(b) that good cause exists for the substitution or discharge of a maintenance order; or
(c) that good cause exists for the substitution or discharge of a verbal or
written agreement in respect of maintenance obligations in which
respect there is no existing maintenance order, has been made and is lodged with a maintenance officer in the prescribed manner, the maintenance officer shall investigate that complaint in the prescribed manner and as provided in this Act.
(2) After investigating the complaint, the maintenance officer may institute an enquiry in the maintenance court within the area of jurisdiction in which the person to be maintained, or the person in whose care the person
to be maintained is, resides, carries on business or is employed with a view to enquiring into the provision of maintenance for the person so to be maintained.’’.
‘‘(3) (a) If a complaint is lodged with a maintenance officer in terms of section 6 and the maintenance officer, after all reasonable efforts to locate the whereabouts of the person who may be affected by an order which may be made by a maintenance court pursuant to the complaint so lodged, have failed, the maintenance officer may apply to the maintenance court, in the prescribed manner, to issue a direction as contemplated in this subsection.
(b) If a maintenance court is satisfied that all reasonable efforts to locate the whereabouts of a person have failed, as contemplated in paragraph (a), the court may issue a direction in the prescribed form, directing one or more electronic communications service providers to furnish the court, in the prescribed manner,
with the contact information of the person in question if that person is in fact a customer of the service provider.
(c) If the maintenance court issues a direction in terms of paragraph (b) the maintenance court shall direct that the direction be served on the electronic communications service provider in the prescribed manner.
(d) The information referred to in paragraph (b) shall be provided to the maintenance court within the time period set out by the court in the direction.
(e) An electronic communications service provider on which a direction is served may, in the prescribed manner, apply to the maintenance court for—
(i) an extension of the period referred to in paragraph (d) on the grounds that the information cannot be provided timeously; or
(ii) the cancellation of the direction on the grounds that—
(aa) it does not provide an electronic communications service in respect of the person referred to in the direction; or
(bb) the requested information is not available in the records of the electronic communications service provider.
(f) After receipt of an application referred to in paragraph (e), the maintenance court shall consider the application, give a decision in respect thereof and inform the electronic communications service provider, in the prescribed manner, of the outcome of the application.
(g) The list of electronic communications service providers referred to in section 4(7) of the Protection from Harassment Act, 2011 (Act No. 17 of 2011), may be used by maintenance courts for purposes of this subsection.
(h) The tariffs payable to electronic communications service providers for providing information as determined by the Minister in terms of section 4(8) of the Protection from Harassment Act, 2011, apply in the case of information required in terms of this subsection.
(i) If the maintenance officer is of the opinion that the person lodging the complaint referred to in paragraph (a) is unable to pay the costs involved in the furnishing of information referred to in paragraph (b), the maintenance officer may at any time after the maintenance court issues a direction under the said paragraph (b), request the maintenance court to hold an enquiry into—
(i) the means of the complainant; and
(ii) any other circumstances which, in the opinion of the maintenance court, should be taken into consideration.
(j) At the conclusion of the enquiry referred to in paragraph (i) the maintenance court may make such order as the court may deem fit relating to the payment of the costs involved in the furnishing of information referred to in paragraph (b), including an order directing the State, subject to section 20, to pay such costs within available resources, in the prescribed manner.
(k) The maintenance court may, if it has ordered the State to pay the costs referred to in paragraph (j), upon the application of the maintenance officer, order
the person affected by the order to refund the costs so paid by the State in terms of paragraph (j), in the prescribed manner.
(l) For purposes of this subsection, ‘‘electronic communications service provider’’ means an entity or a person who is licensed or exempted from being licensed in terms of Chapter 3 of the Electronic Communications Act, 2005 (Act No. 36 of 2005), to provide an electronic communications service.’’.
‘‘(1) (a) A maintenance officer who has instituted an enquiry in a maintenance court may cause any person, including any person legally liable to maintain any other person or any person in whose favour a maintenance order has already been made, to be subpoenaed—
(i) to appear before the maintenance court and give evidence; or
(ii) to produce any book, document or statement.
(b) A book, document or statement referred to in paragraph (a)(ii) includes—
(i) any book, document or statement relating to the financial position of any person who is affected by the legal liability of a person to maintain any other person or in whose favour a maintenance order has been made; and
(ii) in the case where such person is in the service of an employer, a statement which gives full particulars of his or her earnings and which is signed by the employer.’’.
‘‘(6) (a) A maintenance court shall conclude maintenance enquiries as speedily as possible and shall ensure that postponements are limited in number and in duration.
(b)A maintenance court may, where a maintenance order has not been made and a postponement of the enquiry is necessary and if the court is satisfied that—
(i) there are sufficient grounds prior to such postponement indicating that one of the parties is legally liable to maintain a person or persons; and
(ii) undue hardship may be suffered by the person or persons to be maintained as a result of the postponement, subject to paragraph (c), make an interim maintenance order which the maintenance court may make under section 16(1)(a).
(c) When the maintenance court subsequently makes any order under section 16, the maintenance court may—
(i) make an order confirming the interim maintenance order referred to in paragraph (b); or
(ii) set aside such interim maintenance order or substitute it with any other order which the maintenance court may consider just in the circumstances.’’.
(a) of subsection (2) of the following paragraph:
‘‘(2) (a) Any court—
(i) that has at any time, whether before or after the commencement of this Act made a maintenance order under subsection (1)(a)(i) or (b)(i);
(ii) that makes such a maintenance order; or
(iii) that convicts any person of an offence referred to in section 31(1), shall, subject to paragraph (b)(i), make an order directing any person, including any administrator of a pension fund, who is obliged under any contract to pay any sums of money on a periodical basis to the person against whom the maintenance order in question has been or is made, to make on behalf of the latter person such periodical payments from moneys at present or in future owing or accruing to the latter person as may be required to be made in accordance with that maintenance order if that court is satisfied—
(aa) where applicable, in the case of subparagraph (i), after hearing such evidence, either in writing or orally, as that court may consider necessary;
(bb) where applicable, in the case of subparagraph (ii), after referring to the evidence adduced at the enquiry or the application for an order by default, as the case may be; or
(cc) where applicable, in the case of subparagraph (iii), after referring to the evidence adduced at the trial; and
(dd) where applicable, after hearing such evidence, either in writing or orally, of any person who is obliged under any contract to pay any sums of money on a periodical basis to the person against whom the maintenance order in question has been or is made, that it is not impracticable in the circumstances of the case: Provided that nothing precludes the court from making an order in terms of this subsection if it is of the opinion that any further postponement of the enquiry in order to obtain the evidence of the person referred to in subparagraph (dd) will give rise to an unreasonable delay in the finalisation of the enquiry, to the detriment of the person or persons to be maintained.’’.
‘‘Orders by consent
(2) A copy of an order made [against any person not present] at the enquiry in the absence of one or both of the parties as provided for in subsection (1), shall be delivered or tendered to him or her or them, as the case may be, by any maintenance officer, police officer, sheriff or maintenance investigator, and the return of any such officer, sheriff or investigator showing that such copy was delivered or tendered to the particular person or persons shall be deemed to be sufficient proof of the fact that he or she was or they were aware of the terms of the order in question.’’.
(a) by the substitution for subsection (1) of the following subsection:
‘‘(1) If a maintenance court is satisfied on the grounds of sufficient proof or otherwise—
(a) that any person against whom an order may be or has been made under section 16(1)(a) or (b) or that any person in whose favour such an order has been made—
(i) has knowledge of a subpoena issued under section 9; or
(ii) has appeared before the court and was warned by the court to appear at a later date, time and place before the court; and
(b) that he or she has failed to appear before the maintenance court on the date and at the time and place—
(i) specified in such subpoena; or
(ii) in accordance with a warning referred to in paragraph (a)(ii), the maintenance court may, on application of the maintenance officer for an order by default, call upon the person who has lodged the complaint to adduce such evidence, either in writing or orally, in support of his or her complaint as the maintenance court may consider necessary.’’;
(b) by the substitution for subsection (3) of the following subsection:
‘‘(3) A copy of an order made [against] in respect of any person not present at the enquiry shall be delivered or tendered, as soon as may be practicable in the circumstances, to him or her by any maintenance officer, police officer, sheriff or maintenance investigator, and the return of any such officer, sheriff or investigator showing that such copy was delivered or tendered to the particular person shall be deemed to be sufficient proof of the fact that he or she was aware of the terms of the order in question.’’; and
(c) by the substitution for paragraph (a) of subsection (4) of the following paragraph:
‘‘(a) The person [against] in respect of whom a maintenance court has made an order by default may apply to the maintenance court for the variation or setting aside of the order.’’.
‘‘Orders as to costs of service and directions
(a) the service of process; and
(b) obtaining the information contemplated in section 7(3).’’.
‘‘Notice of substitution or discharge of maintenance orders
(a) makes an order under section 16(1)(b) in substitution of a maintenance order; or
(b) discharges a maintenance order under section 16(1)(b), the maintenance order shall cease to be of force and effect only insofar as the court expressly, or by necessary implication, replaced that order or part thereof, and the maintenance officer shall forthwith give notice of the decision to the registrar or clerk of the court in the Republic where the maintenance order was issued or where the sentence concerned was imposed, as the case may be, who shall deal with the relevant records or registers in the prescribed manner.’’.
‘‘(1) Subject to the directions prescribed in connection with the transfer of maintenance orders, the maintenance officer [may] shall, in writing, direct the clerk of the court where a maintenance order was made to transmit the maintenance order, together with the prescribed records, to the clerk of the maintenance court within the area of jurisdiction of which the person in whose favour the maintenance order was made, or the person in whose care that person is, resides, carries on business or is employed.’’.
‘‘(2A) On the granting of an application contemplated in subsection (2) by a maintenance court, the maintenance officer or clerk of the court at the request of the maintenance officer, shall, notwithstanding anything to the contrary contained in any law, in the prescribed manner, furnish the particulars of the person against whom a maintenance order has been made and a certified copy of the order of the court contemplated in subsection (2)(a)(i), (ii) or (iii), to any business which has as its object the granting of credit or is involved in the credit rating of persons.’’.
subsection (1) of the following subsection:
‘‘(1) A maintenance court may—
(a) on the application of a person referred to in section 26(2)(a); [or]
(b) when such court suspends the warrant of execution under section 27 (4)(b)[,];
(c) when such court suspends the order for the attachment of debt under section 30(1); and
(d) where applicable, after hearing the evidence, either in writing or orally, of the employer of the person in question, make an order for the attachment of any emoluments at present or in future owing or accruing to the person against whom the maintenance or other order in question was made to the amount necessary to cover the amount which the latter person has failed to pay, together with any interest thereon, as well as the costs of the attachment or execution, which order shall authorise any employer of the latter person to make on behalf of the latter person such payments as may be specified in the order from the emoluments of the latter person until such amount, interest and costs have been paid in full: Provided that nothing precludes the court from making an order in terms of this subsection if it is of the opinion that any further postponement of the enquiry in order to obtain the evidence of the person referred to in paragraph (d) will give rise to an unreasonable delay in the finalisation of the enquiry, to the detriment of the person or persons to be maintained.’’.
(a) by the substitution for subsection (1) of the following subsection:
‘‘(1) Subject to the provisions of subsection (2), any person who fails to make any particular payment in accordance with a maintenance order shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding [one year] three years or to such imprisonment without the option of a fine.’’; and
(b) by the substitution for subsection (4) of the following subsection:
‘‘(4) If a person has been convicted of an offence under this section, the maintenance officer [may] shall, notwithstanding anything to the contrary contained in any law, in the prescribed manner, furnish that person’s personal particulars to any business which has its object the granting of credit or is involved in the credit rating of persons.’’.
‘‘Offences relating to maintenance enquiries
‘‘Offences relating to certain notices
(a) without sufficient cause, refuses or fails to make any payment in accordance with a notice under section 16(3)(a), 29(1) or 30(1); or
(b) refuses or fails to give notice to a maintenance officer as required by section 16(3)(b) or 29 (2), shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding [six months] two years.’’.
‘‘Offences relating to notice of change of address
‘‘Offences relating to maintenance investigators
39A. (1) Any person who wilfully hinders or obstructs a maintenance investigator in the exercise of his or her powers or the performance of his or her duties shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.
(2) Any person, other than a clerk of the court who is requested to assist a maintenance investigator in the performance of his or her functions, who has not been appointed as a maintenance investigator in terms of this Act and who—
(a) performs any function entrusted to a maintenance investigator under any law; or
(b) pretends to be or makes use of any name, title or addition or description creating the impression that he or she is a maintenance investigator or is recognised by law as such, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.’’.
‘‘Conversion of criminal proceedings into maintenance enquiry
(a) an offence referred to in section 31(1); or
(b) the enforcement of any sentence suspended on condition that the convicted person make periodical payments of sums of money towards the maintenance of any other person, it appears [to the court] on good cause shown that it is desirable that a maintenance enquiry be held, [or when the public prosecutor so requests, the court shall] the court may, of its own accord or at the request of the public prosecutor, convert the proceedings into such enquiry.’’.
Children born out of wedlock – let us have a look at the law when it comes to their surname, and changes to it. In the ideal world, a couple falls in love, gets married, and then bring a child into this world. However, since the beginning of time, this was not always the case. History has many stories of children who were born out of wedlock. This is more prevalent this modern day as many couples decide to start a family, without nuptials. Then there is the other extreme where a child is conceived through a brief encounter and then the parties continue with their own paths in life.
The law and society also treat children born out of wedlock differently. This has changed to an extent where neutral terms are being used. Words like “illegitimate” and so on are used to refer to such innocent children whose fate was laid down by their parents. The law and society were so extreme, that even children born from religious marriages, which were not recognised as valid civil marriages were also referred to as “illegitimate”. It is however still shocking that the South African law we refer to later, still uses the term “illegitimate child”.
Nonetheless, a beautiful innocent child is born, and then the issue of whose surname he or she should have has arisen. This is what this article addresses. Whose surname should a child born out of wedlock have, according to the law? And further, can such a surname be legally changed later?
This article deals with two issues in relation to a surname of a child born out of wedlock. The first is whose surname a child born out of wedlock should have according to the law? This is an important issue. There are a few scenarios that come to play. One where the parties lived together and planned on having the child and intend to marry or live together indefinitely. In such a case, maybe the child should have the father’s surname.
Then there is the other situation, where the mother and the father of the child had a short intimate relationship, and he wants the child to have his surname. This could be complicated as he may never form part of the child’s life but wants the child to have his surname. This we refer to as an ego or vanity reason.
And the second issue this article deals with is what the law says regarding a change to the surname of a child born out of wedlock. This is also an important issue as, sometimes, the father of a child born out of wedlock is the one who cares for the child and invests most of his life in the child. Situations can arise where it would be expedient for him to have primary care over the child and for the child to have his surname. We will look at this issue in more detail below. Now let us look at the law.
When it comes to issues of name, surname, details of the father on the birth certificate and so on, we refer to the Births and Deaths Registration Act 51 of 1992. What this Act says, is that within 7 (seven) days of the birth of the child born out of wedlock, or any child for that matter, notice of his or her birth must be given to the Department of Home Affairs in the prescribed manner. It further says that if the parents are married, then the child would have the father’s surname. However, that is not the case for children born out of wedlock as you will see later.
The Births and Deaths Registration Act 51 of 1992 unfortunately still uses the term “illegitimate child”. But let’s have a look at it anyway.
Section 10 of the Births and Deaths Registration Act 51 of 1992 is entitled “Notice of birth of illegitimate child”. It states the following:
“10. (1) Notice of birth of an illegitimate child shall be given –
(a) under the surname of the mother; or
(b) at the joint request of the mother and of the person who in the presence of the person to whom the notice of birth was given acknowledges himself in writing to be the father of the child and enters the prescribed particulars regarding himself upon the notice of birth, under the surname of the person who has so acknowledged.
(2) Notwithstanding the provisions of subsection (1), the notice of birth may be given under the surname of the mother if the person mentioned in subsection 5 (1 )(b), with the consent of the mother, acknowledges himself in writing to be the father of the child and enters particulars regarding himself upon the notice of birth.”
Section 10 says that if the child was born out of wedlock, he or she should have the surname of the mother. However, if both the mother and father agree, then the child can have the surname of the father. Now, this is what the law says, and what would probably happen in life should the mother and father be on good terms when the child’s name is registered. However, what can the father do if later he wants the child to have his surname? In that case, we have to look at a different section of the Births and Deaths Registration Act 51 of 1992. And that is section 25 of the Act.
Section 25 of the Births and Deaths Registration Act 51 of 1992 deals with the alteration of the surname of a minor. Unfortunately, in that section, the word “illegitimate minor” is still used. The sections state the following:
“25. (1) When-
(a) the birth of any illegitimate minor has been registered and the mother of that minor marries any person other than the natural father of the minor;
(b) the father of any minor is deceased or his parents’ marriage has been dissolved and his mother remarries or his mother as a widow or divorcee resumes a surname which she bore at any prior time;
(c) the birth of any illegitimate minor has been registered under the surname of his natural father; or
(d) a minor is in the care of a guardian,
his mother or his guardian, as the case may be, may apply to the Director-General for the alteration of his surname to the surname of his mother, or the surname which his mother has resumed, or the surname of his guardian, as the case may be, and the Director-General may alter the registration of birth of that minor accordingly in the prescribed manner: Provided that the man who married the mother of a minor mentioned in paragraph (a) or (b), shall grant written consent for the alteration.
(2) Any parent or any guardian of a minor whose birth has been included under a specific surname in the population register, may on the strength of a reason not mentioned in subsection (1), apply to the Director-General for the alteration of the surname of the minor under which his birth was registered, and the Director-General may, on submission of a good and sufficient reason given for the contemplated alteration of the surname, alter the said original surname accordingly in the prescribed manner.
(3) For the purposes of this section “guardian” includes any person who has in law or in fact the custody or control of a minor.”
Section 25 (1) provides for the situation where the minor can have his or her surname change. Most of the reasons mentioned sound logical. However, what happens in the case of a father wanting to change the child’s surname to his surname and the child was born out of wedlock? Well, in that case, section 25 (2) comes with an answer.
According to section 25(2), the father of the illegitimate child can make an application to the Director-General of the Department of Home Affairs for the change of the minor child’s surname born out of wedlock. However, if the mother is still alive, both parents must consent to the application. If, however, the mother does not consent to it, the father would have to make an application to the High Court to dispense with the mother’s consent and for the Director-General to apply their mind without the consent of the mother.
Should there be an application to Court, as just mentioned, the Court would have to look at what is in the best interests of the minor child. Various factors would be looked at. It is however suggested that ego reasons should not be the justification for making the application. In other words, the father wants the child to have his surname solely due to him being the father, even though the mother cares for the minor child.
Paternity disputes are not uncommon in our courts of law. What sparks them varies, however, all disputes are messy. For one, the mere allegation that he is not the father of the child may directly or indirectly affect the dignity of the mother, and that of the child. In other words, it is suggested that she had more than one sexual partner at the time, and the child was born from such a relationship. Nonetheless, the issue can speedily be resolved through scientific DNA testing.
There are two common legal settings where a parent (or alleged parent) would dispute paternity. The one would be in a child maintenance dispute, where the father alleges that he is not the biological father of the child, and therefore cannot be ordered to pay child maintenance. The other situation would be in a child custody or visitation dispute. Here the mother would allege that the man is not the father, or he denies paternity.
There are other scenarios where paternity can become an issue. One would be in the case of inheritance. A parent would allege that a child is an heir of the person who passed on. Another would be in the case of marriage. What happens if there is a rumour your intended bride is your half-sister? These disputes and many others can only be resolved with DNA or scientific testing. Below we further deal with the question as to whether a court can force a parent and a child to submit to a blood test. That is where It gets interesting. The latter scenario laid the seed for researching and writing this post. Read on to learn more. You may learn something new.
Now let’s start with the common law. There is a phrase or common law presumption, “Pater est quem nuptiae demonstrant”. It is a Latin phrase which states that the father is he who is married to the mother. In other words, if the child was born whilst the father was married to the mother, it is presumed that he is the father.
Therefore, unless the father or mother can prove otherwise, every child born from a marriage is presumed to be the child of the husband. If the husband or wife disputes it, they must prove it. This may become an issue during divorce proceedings. The wife may allege that the husband is the father of the child and claim maintenance from him. He would then in his plea state that he is not the father and accordingly not responsible to pay child support. At the divorce trial, he would have to prove that he is not the father. A simple way of resolving the dispute would be through a blood test or scientific DNA testing.
Now let’s move on to written law, in legislation and learn some more.
There are two pieces of legislation that applies in relation to paternity issues regarding minor children. It is the Maintenance Act 99 of 1998, in relation to child maintenance matters, and the Children’s Act 38 of 2005, in relation to child legal matters in general. We shall, however, start with the Children’s Act 38 of 2005.
The Children’s Act has two (2) sections dealing with paternity issues. The first deals with the Presumption of paternity in respect of a child born out of wedlock and the other, the refusal to submit to the taking of blood samples. We quote them next.
“If in any legal proceedings in which it is necessary to prove that any particular person is the father of a child born out of wedlock it is proved that that person had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is, in the absence of evidence to the contrary which raises a reasonable doubt, presumed to be the biological father of the child.”
“If a party to any legal proceedings in which the paternity of a child has been placed in issue has refused to submit himself or herself, or the child, to the taking of a blood sample in order to carry out scientific tests relating to the paternity of the child, the court must warn such party of the effect which such refusal might have on the credibility of that party.”
Looking at the aforementioned sections of the Children’s Act, in a paternity dispute, it is presumed that if parties had sexual intercourse at any time when that child could have been conceived, the male is the father. The father can disprove this by raising reasonable doubt. This can be done by proving that he was sterile, or through scientific DNA testing. If another man comes and says he is the father; we are sure some reasonable doubt may be created.
According to the next section in the Children’s Act, if a party refuses to submit to a paternity test, it could affect his or her credibility. Therefore, if someone is truly a parent, or not a parent, and has nothing to fear from the truth, he or she should submit themselves to a blood test. Failing which, it might affect that person’s credibility in the matter. The court could then infer that he or she is lying. Now let’s move on to the Maintenance Act in child maintenance matters.
In our experience, it is the offices of the maintenance courts that deals mostly with paternity disputes. When the father gets called to the maintenance court, to pay child support for a child he does not have a relationship with, in some cases, he would invoke the paternity defence. In other words, he would dispute the paternity of the child. In such a case, he would request a paternity test.
Section 21 of the Maintenance Act deals with orders relating to scientific tests regarding paternity. Here we quote the relevant section next.
(1) If the maintenance officer is of the opinion-
(a) that the paternity of any child is in dispute;(b) that the mother of such child, as well as the person who is allegedly the father of such child, are prepared to submit themselves as well as such child, if the mother has parental authority over the said child, to the taking of blood samples in order to carry out scientific tests regarding the paternity of that child; and
(c) that such mother or such person or both such mother and such person are unable to pay the costs involved in the carrying out of such scientific tests,
the maintenance officer may at any time during the enquiry in question, but before the maintenance court makes any order under section 16, request the maintenance court to hold an enquiry referred to in subsection (2).
(2) If the maintenance officer so requests, the maintenance court may in a summary manner enquire into-
(a) the means of the mother of the child as well as the person who is allegedly the father of the child; and
(b) the other circumstances which should in the opinion of the maintenance court be taken into consideration.
(3) At the conclusion of the enquiry referred to in subsection (2), the maintenance court may-
(a) make such provisional order as the maintenance court may think fit relating to the payment of the costs involved in the carrying out of the scientific tests in question, including a provisional order directing the State to pay the whole or any part of such costs; or
(b) make no order.
(4) When the maintenance court subsequently makes any order under section 16, the maintenance court may-
(a) make an order confirming the provisional order referred to in subsection (3) (a); or
(b) set aside such provisional order or substitute therefor any order which the maintenance court may consider just relating to the payment of the costs involved in the carrying out of the scientific tests in question.
Looking at the aforementioned section, it does not say much about the evidentiary aspect of paternity testing. It basically deals with the costs thereof. However, what is clear is that the Maintenance Court considers issues of paternity disputes and deals with it. Nonetheless, the aforementioned provisions of the Children’s Act would apply to matters in the Maintenance Court. Next, we move on to the issue of whether or not a court can force a party to submit to a paternity test.
The two pieces of legislation referred to above does not assist us much with regard to the issue of a court forcing a parent to submit to a paternity test. We now need to consider the case law. In other words, what do the courts have to say about this?
Most of the older court decisions, do not agree with forcing a parent to submit to a blood/paternity test. However, it seems that things have changed in the past decade. Let us refer to the judgment of LB v YD 2009 (5) SA 463 (T), a Transvaal Provincial Division matter handed down by Judge Murphy less than 10 years ago.
One of the issues, in this case, was that the mother did not want to submit herself to a blood test. Her view, amongst other things, was that it was not in the child’s best interests. The father argued that it was his right to know whether or not he is the father of the child. He further argued that his right to the certainty of paternity outweighs any inconvenience that might be suffered by the mother and the child.
With regard to the law, the Court stated the following:
 The law on the topic of compulsory blood or DNA testing in parental disputes is not satisfactory. There is no legislation which specifically regulates the position in civil cases. Judicial pronouncements on the topic have not been unanimous in their approach to the issues and have differed on the proper legal basis for ordering tests. In relation to the child the courts have relied on their inherent jurisdiction as upper guardian, while in relation to the non-consenting adult some judges have invoked the inherent jurisdiction of a court to regulate its own procedures while others have refused to do so. In all cases the courts have been mindful of the need on the one hand to protect the privacy and bodily integrity of those to be subjected to tests, but on the other hand have asserted the court’s role to discover the truth whenever possible and to make use of scientific methods for that purpose.
 In short, I agree with those judges and commentators who contend that as a general rule the more correct approach is that the discovery of truth should prevail over the idea that the rights of privacy and bodily integrity should be respected – see Kemp ‘Proof of Paternity: Consent or Compulsion’ (1986) 49 THRHR 271 at 279 – 81. I also take the position, and I will return to this more fully later, that it will most often be in the best interests of a child to have any doubts about true paternity resolved and put beyond doubt by the best available evidence.
 The present case is one in which a clearing of the air is called for. Both parties have at various times admitted and denied that the applicant is the biological father. The respondent was intimate with a second party, her husband, within the period of possible conception. The child is barely 1 year old and thus there is no established relationship that might be unduly disturbed or harmed by a determination of non-paternity. If the applicant is established to be the father, the child will benefit in time from knowing the truth and from the applicant’s commitment to her financial wellbeing. The possible stigma of a disputed paternity will also be removed. And, furthermore, legislative safeguards exist for the assignment and monitoring of appropriate parental rights and responsibilities to the applicant, should that prove permissible. I accordingly consider that it will be in the best interests of the child that paternity be scientifically determined and resolved at this early stage.
 I agree that the order sought by the applicant is the one that should be granted. It is ordered as follows:
The numbers in the square brackets denote the number of the paragraph you would find it in the judgment should you decide to make use of it.
We agree with Judge Murphy. It is clear that the Courts can and should compel parents and children to submit to a blood test/DNA test when it is in the child’s best interests. Each case is different, and whereby a compelled blood test/DNA test would be warranted in one scenario, it may not be in the other. Nonetheless, with modern technology at our disposal, a simple paternity test is currently less intrusive than it was in the past.
Best interests of a child: When it comes to child maintenance, the child’s best interests are of paramount importance. This principle is immortalised in our Constitution and applied in our Courts of Law. Therefore, in relation to child maintenance matters, and specifically to the child maintenance court, the moment a parent files an application for child maintenance, the principal should apply. Before we move on, on a side note, it is not only child maintenance that the maintenance court deals with. A spouse may take the other to the maintenance court for personal maintenance.
Both parents have a duty of support towards their minor child’s proper living and upbringing. This should be according to their means, standard of living, station in life, and the needs of the child. This is found in our common law and further applies to divorced parents.
According to section 15(2) of the Maintenance Act, the duty “extends to such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.”
Furthermore, the duty is not discharged where one parent earns substantially more than the other.
According to section 15(3) of the Maintenance Act, in determining the maintenance amount, the maintenance court must take into consideration the following:
“(i) that the duty of supporting a child is an obligation which the parents have incurred jointly;
(ii) that the parents’ respective shares of such obligation are apportioned between them according to their respective means; and
(iii) that the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.
(b) Any amount so determined shall be such amount as the maintenance court may consider fair in all the circumstances of the case.”
Lastly, there is an onus on both the maintenance officer and the maintenance magistrate in placing evidence before the court in determining a fair maintenance amount. This is our starting point going forward.
When a parent approaches the maintenance court for child maintenance, it is the duty of the maintenance clerk to expeditiously process the application. In doing so, the clerk through the other resources of the maintenance court, should ascertain the details of the other parent, and ensure that he or she is brought to court as soon as possible for a maintenance enquiry before a maintenance officer.
Therefore, for example, should the maintenance clerk not have the living or work address of the father, then he or she must enlist the assistance of the maintenance investigator to obtain it. For that, he or she can make use of the search and tracking resources the maintenance investigator makes use of and has access to.
After the maintenance application has been processed, it is the duty of the maintenance court to ensure that the non-paying parent makes his or her way to the maintenance court as soon as possible for a maintenance enquiry. This enquiry is held before a maintenance officer. Even if the maintenance court’s diary is quite full, it should still expedite this process, giving both parents adequate time to make arrangements to appear in the maintenance court.
Therefore, if the next available date for a maintenance enquiry is in three (3) months time, the parties can use this time to make arrangements with their work, obtain necessary information for the enquiry, or make alternative school traveling arrangements for the kids. There should therefore not be a delay in notifying the parents of the date of the maintenance enquiry.
Furthermore, when notified of the court date, both parents receive a document stating what information they should bring with to the maintenance enquiry. These include three (3) months bank statements, and salary advices as well as proof of expenses.
Giving the parties adequate time to obtain this information would be vital and, in the child’s best interests. The last thing we want is for the matter to be postponed to another date due to either parent not having been given adequate time to obtain the documents, even though the mother made the application many months ago.
The maintenance enquiry is the next legal step in the process. This is where things get interesting. Sometimes, at this enquiry, it is the first time the parents are in the same room together, since the child was conceived. Quite often, both parents do not know much about the current financial affairs of the other parent. The parent asked to pay child support, furthermore, does not know what the child costs to maintain.
What sometimes happens, is that the father denies paternity. This he would either do out of spite or due to genuine doubt on his side. This would often be the case if there was a brief encounter between the parents when the child was conceived. Sometimes the father is married to someone else, and for the sake of his current marriage, he needs to deny paternity.
Once the paternity tests are finalised, the parties would need to return to court again for the results. If the results are positive, in that he is the father, then the enquiry proceeds. If he is not the biological father, the application is removed from the court roll.
Again, the golden standard in which the enquiry should be conducted is that of the child’s best interests. This is of paramount importance.
The maintenance officer should, therefore, ensure that all the financial information about the parties are properly disclosed. This is very important. However, at the same time, the maintenance officer should try to settle the matter, taking into consideration the child’s best interests.
Should the parents not be forthcoming regarding their income and expenses, and the needs of the child, then the maintenance officer must subpoena witnesses if need be and make use of the maintenance investigator which we deal with next.
Section 7(1)(d) of the Maintenance Act empowers the maintenance officer to “require a maintenance investigator of the maintenance court concerned to perform such other functions as may be necessary or expedient to achieve the objects of this Act.”
Section 7(2)(e) of the Maintenance Act empowers the maintenance investigator after so being instructed by the maintenance officer, to:
“gather information concerning-
(i) the identification or whereabouts of any person who is legally liable to maintain the person mentioned in such complaint or who is allegedly so liable;
(ii) the financial position of any person affected by such liability; or
(iii) any other matter which may be relevant concerning the subject of such complaint; or
(f) gather such information as may be relevant concerning a request referred to in subsection (1) (c).
Now that we looked at the importance of the role of the maintenance officer and maintenance investigator, we move on to the role of the maintenance magistrate. This is where the formal enquiry takes place.
Should the parties not be able to come to an agreement regarding the amount of child maintenance to be paid at the enquiry before the maintenance officer; the matter would have to go before the maintenance magistrate for a formal enquiry.
Here the court has to properly consider the means and needs of the mother, the means and needs of the father, and the needs of the minor child. Thereafter, make a maintenance award.
There is a legal obligation upon the maintenance officer and the magistrate to conduct a thorough enquiry. The court should not play the role of an umpire.
Therefore, a passive attitude should not be taken by a judicial officer in a maintenance enquiry and then give judgment. Should all go well, at the end of the enquiry, a maintenance award would be made.
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On 31 August 2018, the Western Cape High Court handed down a ground-breaking judgment. In effect, it Orders the State to prepare, initiate, introduce, enact, and bring into operation, diligently, and without delay, legislation to recognise Muslim marriages. The High Court gave the State exactly two (2) years to attend to the latter process. This two (2) years would only be suspended if the matter is taken to the Constitutional Court. However, should the matter not be taken to the Constitutional Court for final determination, and the State does not enact the legislation, then by default, Muslim marriages may be dissolved in accordance with the Divorce Act 70 of 1979. Therefore, it is up to the State to action matters urgently.
To understand how the judgment benefits Muslim Marriages, one needs to understand the legal nature of Muslim Marriages in South Africa. Let us refer to the judgment for some insight:
In the judgment, the following is stated:
“The issues before us concern recognition and regulation of marriages solemnised and celebrated according to the tenets of Islamic (also referred to as ‘Muslim marriages’). It is undisputed that marriages entered into in terms of the tenets of Islam have not been afforded legal recognition for all purposes. The applicants argue that non-recognition and non-regulation of these marriages violates the rights of women and children in particular in these marriages. According to them. the State has failed in its duty of respect, protect promote and fulfil the Bill of’ Rights as required in section 7(2) of the Constitution, in the face of its constitutional and international obligations and that the most effective way of dealing with this systemic violation of rights, is an enactment of statute. This approach. according to the applicants has been postulated by the courts in a number of judgments dealing with issues concerning Muslim marriages before.”
Unfortunately, until the Muslim Marriages Act comes into operation, Muslim Marriages are not valid marriages in terms of South African Law. The consequences are however enforceable. For example, spousal support, succession, contracts etc. However, a Muslim spouse cannot get a divorce in terms of the Divorce Act, or make use of certain legislation as in the case of civil marriages. If a party is married in terms of civil law, he or she must approach a court of law for a valid divorce. That, unfortunately, does not apply to Muslim Marriages. Therefore, the Judgement is welcomed.
To get a better understanding of what the order of the court was, you can read it below.
Feel free to leave your comments below.
 In the result. the following orders are proposed:
1 . It is declared that the State is obliged by section 7(2) of the Constitution to respect, protect, promote and fulfil the rights in sections 9, 10, 15. 28, 31 and 34 of the Constitution by preparing, initiating. introducing, enacting and bringing into operation. diligently and without delay as required by section 237 of the
Constitution, legislation to recognise marriages solemnised in accordance with the tenets of Sharia law (‘Muslim marriages’) as valid marriages and to regulate the consequences of such recognition.
2. It is declared that the President and the Cabinet have failed to fulfil their respective constitutional obligations as stipulated in paragraph 1 above and such conduct is invalid.
3. The President and Cabinet together with Parliament are directed to rectify the failure within 24 months of the date of this order as contemplated in paragraph 1 above.
4. In the event that the contemplated legislation is referred to the Constitutional Court by the President in terms of section 79(4)(b) of the Constitution, or is
referred by members of the National Assembly in terms of section 80 of the Constitution, the relevant deadline will be suspended pending the final determination of the matter by the Constitutional Court:
5. In the event that legislation as contemplated in paragraph 1 above is not enacted within 24 months from the date of this order or such later date as contemplated in paragraph 4 above, and until such time as the coming into force thereafter of such contemplated legislation, the following order shall come into effect:
5.1 It is declared that a union validly concluded as a marriage in terms of Sharia law and which subsists at the time this order becomes operative, may (even after its dissolution in terms of Sharia Law) be dissolved in accordance with the Divorce Act 79 of 1979 and all the provisions of the Act shall be applicable, provided that the provisions of section 7(3) shall apply to such a union regardless of when it was concluded: and
5.2 In the case of a husband who is a spouse in more than one Muslim marriage, the court shall:
(a) take into consideration all relevant factors including any
contract or agreement and must male any equitable order that it
deems just; and
(b) may order that any person who in the court’s opinion has a sufficient interest in the matter be joined in the proceedings.
5.3 If administrative or practical problems arise in the implementation of this order, any interested person may approach this Court for a variation of this order.
5.4 The Department of Home Affairs and the Department of Justice shall publish a summary of the orders in paragraphs 5.1 to 5.2 above widely in newspapers and on radio stations, whatever is feasible, without unreasonable delay.
6. An order directing the Minister of Justice to put in place policies and procedures regulating the holding of enquiries by the master of the High Court into the validity of marriages solemnised in accordance with the tenets of Islamic law is refused.
7. An order declaring the pro forma marriage contract attached as annexure “A” to
the Women’s Legal Centre Trust’s founding affidavit, to be contrary to public policy is refused.
8. In respect of matters under case numbers 22481/2014 and 4406/2013, the president, the Minister of Justice and the Minister of Home Affairs are to pay the costs of the Women’s Legal Centre Trust respectively, such costs to include costs of three counsel to the extent of their employment.
9. In respect of the matter under case number 13877/2015:
9.1 Ruwayda Esau’s claim to a part of the Mogamat Riethaw estate, if any. is postponed for hearing at trial along with Parts B and E, of the particulars of claim.
9.2 The Cabinet and the Minister of justice shall pay Ruwayda Esau’s costs in respect of Claim A, such costs to include costs of two counsel to the extent of their employment.
Feel free to leave your comments below.