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Guardianship of children: recent case

In Ex Parte Sibisi 2011 (1)SA 192 (KZP), the applicant sought an order granting her “sole full parental responsibilities and rights of care, contact, guardianship and maintenance” as defined in Section 18 of the Children’s Act No 38 of 2005 in respect of her grandchild, a boy born on 26 July 2001.

When the matter came before Patel J on 29 April 2010, he declined to deal with the matter and made an order referring the matter to the Children’s Court for determination. The Judge’s reasoning was that the Children’s Court was the appropriate forum to deal with issues relating to the guardianship of children, in the light of the provisions of the Children’s Act.

However in a written memorandum from the presiding officer of the Children’s Court for the Magisterial District of Pietermaritzburg, a submission was made by the presiding officer that the Children’s Court does not have jurisdiction to hear matters pertaining to guardianship of minor children. The matter was eventually referred to a full bench of the Kwazulu-Natal High Court in Pietermaritzburg.

The High Court particularly looked at Section 24 of the Children’s Act, which reads as follows:

“Section 24(1) provides as follows:

24. Assignment of guardianship by order of court –

1) Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant.”

The Court also looked at Section 29 of the Children’s Act, which refers to ss 22(4)(b), 23, 24, 26(1)(b) and 28 of the Children’s Act, and found that it is clear that Section 29 does not confer jurisdiction on the Children’s Court to hear an application for guardianship. The High Court was of the view that this forum, namely the High Court, has exclusive jurisdiction in matters concerning guardianship of a minor child.

The Court also pointed out that intervention by the Legislature may be necessary to clarify the jurisdiction of Children’s Courts as well as Divorce Courts to determine the guardianship of children.

In the end the applicant was granted sole full parental responsibilities and rights of care, contact, guardianship and maintenance as defined in Section 18 of the Children’s Act no 38 of 2005. The Court found that this was in the best interest of the minor child, and that the family advocate had also reported and supported this viewpoint.

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