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Joint Guardianship of Children

Ex Parte Kedar and Another 1993 (1) SA 242 (W)

The first applicant was married in community of property and her husband supported the application.  They had three children together aged 19, 16 and 7.

The second applicant was the domestic worker and an unmarried mother of the boy in question, Lucky Sithole, a ten year old boy.  The second applicant had been employed for six years prior to the application with the first applicant.

The biological father of Lucky had passed away and he had moved in with his mother and first applicant.  They wished to enrol him at a primary school in the area.

The school would not allow the enrolment.  They said that the minor’s parent or guardian was required to be owner of the property within the relevant jurisdiction before the minor may be registered as a pupil at the school.

The applicants now brought an application for joint guardianship to be granted to both of them as they felt that this would be in the best interest of the minor.  The minor had for a number of years been an integral part of the first applicant’s family.  He had a good relationship with the first applicant’s seven year old son.

The court found that the second applicant was an “excellent mother” who was “more than capable of catering for the emotional needs of the minor”.

The court found the application to be well founded.  The court found that it was in the best interests of the minor that an award of joint guardianship should be made, and that this was in fact essential or else the minor would be deprived of the opportunity of undergoing proper schooling.

In this case there were clearly unusual circumstances present.  The second applicant was found undoubtedly to be the natural guardian of the minor child but she had chosen to share her guardianship with the first applicant purely because she wished to act in the best interests of the minor.

The court in my opinion here did a good job in exercising its function as upper guardian of the minor.  It was furthermore very clear that the first applicant was more than suitable to act as joint guardian with the second applicant.  The joint guardianship was granted as prayed.

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