Department of Private Law

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Browsing Department of Private Law by browse.metadata.advisor "Johnson, Ebrezia"

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    The effect of the acquisition of parental responsibilities and rights on the realisation of the right to parental care of children born to unmarried parents
    (Stellenbosch : Stellenbosch University, 2020-03) Rutgers, Joshua Leon; Horsten, Debbie; Johnson, Ebrezia; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: Section 28(1)(b) of the Constitution guarantees every child the right to parental care. It is this right that forms the basis of the research. The content of the right to parental care in South African law is considered in order to identify the persons responsible for the realisation of this right, as well as to highlight what such right entails. The thesis also considers the content of the right to parental care in terms of international law, as the international law position arguably informs South Africa’s interpretation of the right to parental care. The primary aim of this thesis is to determine whether South African civil, customary and/or Muslin personal law limit the right to parental care of children born to unmarried parents. In order to determine this, the rules regulating the acquisition of parental responsibilities and rights are considered, as it is the exercise of such responsibilities and rights that ensures that the child’s right to parental care is realised. Section 28(2) of the Constitution provides that the best interests of the child are of paramount importance in every matter concerning the child. Such matters include the child’s right to parental care and the acquisition of parental responsibilities and rights. The right to parental care must, therefore, be interpreted in light of section 28(2) of the Constitution, resulting in the child being entitled to parental care that is in his or her best interests. This thesis, therefore, further aims to determine whether the manner in which the legal systems under consideration regulate the acquisition of parental responsibilities and rights is in the best interests of children born to unmarried parents. It is argued that the failure of South African civil, customary and Muslim personal law to allow both unmarried biological parents to acquire parental responsibilities and rights automatically, limits the right to parental care of children born to unmarried parents, is not in accordance with the best interests of those children, and unfairly discriminates against such children. It is contended that both biological parents should automatically acquire parental responsibilities and rights, without qualification, and that such responsibilities and rights should only be interfered with if they are exercised in a manner which is contrary to the best interests of the child.