The Constitutional Right to Child Maintenance Cannot Be Terminated: Understanding the Landmark Judgment
In the groundbreaking case of FCP v STC and Another (A 46/2024; 1762021/000227) [2025] ZAWCHC 68 (29 January 2025), the Western Cape High Court has delivered a judgment that fundamentally affirms children’s constitutional right to maintenance cannot be terminated, even when a parent attempts to shed their parental responsibilities and rights through the Children’s Court.
The facts of this case reveal a troubling pattern that unfortunately resonates with many maintenance disputes across South Africa. The appellant, a biological father who had historically denied paternity and evaded maintenance proceedings until paternity was confirmed in November 2022, sought to escape his maintenance obligations by applying to the Children’s Court to terminate his “parental rights” shortly after maintenance proceedings were initiated against him in January 2023.
Acting Judge Gordon-Turner, with Justice Ndita concurring, delivered a judgment that meticulously unpacks the relationship between the Maintenance Act and the Children’s Act, establishing a crucial precedent that the common law duty of child support remains intact regardless of attempts to terminate parental responsibilities and rights under Section 28 of the Children’s Act.
The Court made a critical distinction between the statutory concept of “parental responsibilities and rights” in the Children’s Act and the common law “duty of support,” emphasising that maintenance is not merely a responsibility that can be terminated at will but rather an inherent duty that arises ex lege from the parent-child relationship. Drawing on constitutional principles articulated in cases like Bannatyne v Bannatyne 2003 (2) SA 363 (CC), the judgment reinforces that maintenance is a fundamental child’s right that courts have a constitutional obligation to protect.
This case presents a comprehensive examination of statutory interpretation principles, emphasising that Section 28 of the Children’s Act cannot be construed to repeal Section 15 of the Maintenance Act or the parent’s common law duty of support. The Court’s reasoning underscores that a child’s right to maintenance by both parents is paramount, with the judgment noting that “it is inconceivable that any parent would want to deny their child advantages and opportunities, particularly when it is within the parent’s means to provide them.”
Beyond the strict legal analysis, what makes the FCP case particularly noteworthy is the Court’s practical approach to resolution. Rather than merely dismissing the appeal, the judgment includes a structured mediation order directing the parties to engage with the Family Advocate to create a parental responsibilities and rights agreement that serves the child’s best interests. This forward-looking intervention acknowledges that while courts cannot “direct a parent to love and recognise a child,” as noted in SS v VVS (CCT247/16) [2018] ZACC 5, they can create structures that encourage parents to fulfill their obligations to children.
For family law practitioners, this judgment provides essential guidance on the interpretation of Section 28 of the Children’s Act, clarifying that it cannot be weaponized to escape maintenance obligations. The High Court’s emphasis on child-centered approaches represents a significant evolution in how our legal system addresses the intersection of children’s rights and parental responsibilities, especially in cases where parents attempt to use court processes to sidestep their fundamental obligations to their children.
Forum Shopping and the Abuse of Children’s Court Processes to Evade Maintenance Obligations
The FCP case exposes a disturbing example of what the judgment characterises as “forum shopping” – a calculated attempt to use one court process to undermine another. The timing of the appellant’s application to the Children’s Court speaks volumes: merely eight days after being served with maintenance proceedings, he initiated an application to terminate his “parental rights,” transparently motivated by financial considerations rather than any concern for the child’s welfare.
The Court noted with evident disapproval that the appellant’s approach to the Children’s Court was “akin to forum shopping” and that it was “deeply unfortunate that the Children’s Court unwittingly became an agent assisting the appellant to sidestep his obligations.” This observation highlights a concerning vulnerability in our family law system where different courts with overlapping jurisdictions can be manipulated to produce contradictory outcomes.
What makes this case particularly problematic is the appellant’s candid admission in his Children’s Court application that his motivation was primarily financial. His statement that “The only reason for contacting me was for financial gain as she was getting divorced and needed money” and reference to “practicalities of the situation are not conducive for a relationship as the intent is driven on monetary gain” reveal the true purpose behind his application. The Court recognised this transparent attempt to evade financial responsibility, noting that the appellant “did not allege that he was without means to contribute to M’s maintenance.”
The judgment draws connections to earlier jurisprudence, particularly referencing the Constitutional Court’s observations in Bannatyne v Bannatyne about the need for courts to “be alive to recalcitrant maintenance defaulters who use legal processes to side-step their obligations towards their children.” The FCP case provides a textbook example of this phenomenon, with the appellant’s actions characterised as having “compounded his successful evasion of the machinery of the Maintenance Act by his approach to the Children’s Court.”
This aspect of the judgment raises important questions about procedural safeguards within the Children’s Court system. The Court was particularly critical of the Children’s Court’s failure to exercise its powers under sections 29(5) and (6) of the Children’s Act to appoint a legal representative for the child or to call for reports from the Family Advocate or social workers. This failure was described as “an egregious neglect of its duty to place the child first and to show respect for M’s rights, and is to be deprecated.”
The judgment also questions the appellant’s standing to bring the application in the first place. As an unmarried father who had not satisfied the requirements of section 21(1) of the Children’s Act, the appellant had not acquired parental responsibilities and rights, and therefore could not be considered a “co-holder” of such rights for purposes of section 28(3)(a). This fundamental defect in the Children’s Court proceedings led the Court to conclude that the resulting order was potentially a nullity.
The FCP case thus serves as a cautionary tale about the potential for abuse of court processes in family matters, particularly where financial interests are at stake. It underscores the need for greater coordination between different courts handling family matters and heightened vigilance when one parent appears to be using legal mechanisms to evade their fundamental responsibilities toward their child.
The Narrow Interpretation of Section 28 of the Children’s Act: What the Court Decided
The heart of the FCP judgment lies in its careful statutory interpretation of Section 28 of the Children’s Act 38 of 2005, particularly whether this provision empowers courts to terminate a parent’s maintenance obligations. The Court’s analysis starts from a fundamental premise that statutory interpretation must be guided by the Constitution, with the best interests of the child serving as the paramount consideration.
Justice Gordon-Turner’s judgment provides a detailed linguistic and contextual analysis of Section 28, examining the provision in relation to other sections of the Children’s Act and alongside the Maintenance Act 99 of 1998. The Court emphasises that “maintenance” is anomalous among parental responsibilities and rights in that it is conceptually different – while care, contact, and guardianship involve both rights and responsibilities held by the same person, maintenance is exclusively an obligation, with the corresponding right residing solely with the child.
This conceptual distinction is illustrated through an insightful metaphor: “If one were to extend the metaphor, maintenance is a different coin: heads is the child’s right, and tails is the parent’s responsibility.” This framing helps explain why maintenance cannot simply be terminated through Section 28 proceedings – it would require extinguishing the child’s right, not merely relieving the parent of a responsibility.
The Court’s examination of parliamentary intent reveals that the legislature deliberately protected the duty of maintenance from termination. Pointing to Section 21(2) of the Children’s Act, which explicitly states that “[t]his section does not affect the duty of a father to contribute towards the maintenance of the child,” the judgment concludes that if Parliament had intended Section 28 to permit termination of maintenance obligations, it would have included similar clarifying language.
Justice Gordon-Turner’s analysis also relies on principles of statutory interpretation that disfavor implied repeal of earlier legislation by later enactments. Drawing on Minister of Justice and Constitutional Development and Others v Southern Africa Litigation Centre and Others 2016 (3) SA 317 (SCA), the judgment explains that “repeal by implication is not favoured” and that statutes must be read together in harmony unless express alteration is evident. Since the Children’s Act did not expressly repeal Section 15 of the Maintenance Act, the Court concluded that the common law duty of support remains intact.
The judgment addresses the appellant’s reliance on the presumed discretion of children’s courts under Section 29(3) to grant unconditional termination of parental responsibilities and rights. Justice Gordon-Turner argues that this discretion is constrained by constitutional imperatives – no court has discretion to interpret statutes in a manner that violates children’s constitutional rights. As the Court notes, “There can be no legitimate scenario in which the termination of the obligation to pay maintenance, where there is a need, would ever be in a child’s best interests.”
Particularly insightful is the Court’s observation that Section 28 must be understood from the perspective of the child, not the parent seeking termination. The standing provisions of Section 28(3) emphasise that applications should serve the child’s interests, not provide an escape route for parents wishing to avoid responsibilities. This child-centered approach permeates the entire judgment, reflecting the constitutional mandate to prioritise children’s rights.
The Court also addresses the jurisdictional question of whether Children’s Courts can adjudicate maintenance matters. Citing Ex parte Sibisi 2011 (1) SA 192 (KZP) and SF v TD 2021 JDR 0847 (WCC), the judgment acknowledges ongoing uncertainty about the delineation of children’s courts’ jurisdiction but concludes that maintenance falls primarily within the domain of maintenance courts, observing that “A maintenance order simpliciter is not listed in s 46 of the Children’s Act as one of the orders that a children’s court may make.”
This thorough statutory analysis establishes a precedent-setting interpretation that considerably narrows the scope of Section 28 of the Children’s Act, ensuring it cannot be misused to circumvent maintenance obligations and thereby protecting children’s fundamental rights to support from both parents.
Parental Responsibilities vs. Duties: The Critical Distinction in South African Family Law
The FCP judgment makes a sophisticated contribution to South African family law jurisprudence by carefully delineating the difference between parental responsibilities and rights (as codified in the Children’s Act) and the common law duty of support. This distinction forms the conceptual foundation upon which the entire judgment rests.
Justice Gordon-Turner traces the evolution from the former paradigm of “parental authority” to the current framework of parental responsibilities and rights. The judgment emphasises that while the Children’s Act changed the conceptual framework, it “did not repeal and replace the common law notion of ‘parental authority’.” More importantly, the Court notes that while a parent’s duty of maintenance could be seen as part of their parental authority, it was never limited to it – the “maintenance duty exists even if the parent has no parental authority over the child.”
The judgment dedicates considerable attention to unpacking the quartet of responsibilities and rights in section 18 of the Children’s Act – care, contact, maintenance and guardianship. For the first three (care, contact and guardianship), the Court explains that the holder of parental responsibilities and rights is “the subject of that right/power and the subject of the concomitant duty/obligation – they sit on both sides of the coin, with the parent’s right as heads and their responsibility as tails of the metaphorical coin.”
By contrast, with maintenance, parents “hold no right and have only an obligation. The right in question – to maintenance – is exclusively that of the child.” This conceptual difference is crucial because it explains why maintenance cannot simply be terminated through section 28 proceedings – there is no parental “right” to be terminated, only an obligation corresponding to the child’s right.
The judgment also examines the common law foundations of the duty of support, noting that it is “based out of fairness and the affection of a blood relationship, from a sense of natural justice, on a parental sense of obligation and on natural affinity due to the blood connection.” Critically, under common law this duty could only be terminated in very limited instances: “the child becoming self-supporting or the child having died.” The judgment emphasises that historically “The common-law simply made no provision for any other situation that would entitle a party to terminate his/her maintenance obligation towards his/her child.”
The Court identifies adoption as the only historical exception to this principle. Under both the former Child Care Act and the current Children’s Act, adoption transfers the obligation to maintain from the biological parent to the adoptive parent – but crucially, “The right of the child to be maintained remained and remains intact under both statutes.”
This conceptual analysis leads to a profound insight about the legal structure of family relationships: maintenance obligations flow directly from the parent-child relationship itself, not from the statutory framework of parental responsibilities and rights. While the Children’s Act can regulate who exercises care, contact and guardianship, it cannot extinguish the basic duty that arises from the biological connection between parent and child.
The judgment also addresses the question of standing under section 28 of the Children’s Act. After a thorough examination of case law including RRS v DAL (22994/2010) [2010] ZAWCHC 618 and Marima v Lesele (1065/2019) [2022] ZAGPJHC 380, the Court concludes that the requirements in section 21(1)(b) are cumulative rather than alternative. Since the appellant had not satisfied these requirements (having denied paternity, failed to contribute to upbringing, and made only intermittent maintenance payments), he never acquired parental responsibilities and rights in the first place. This finding strengthens the Court’s conclusion that the Children’s Court order was potentially void for lack of standing.
This sophisticated analysis of the legal architecture of parent-child relationships provides a robust theoretical foundation for the Court’s conclusion that maintenance obligations cannot be terminated through section 28 proceedings, thereby protecting children’s fundamental rights to support.
Mediation and the Best Interests of the Child: The Court’s Forward-Looking Approach
What distinguishes the FCP judgment from many other maintenance disputes is its innovative and pragmatic approach to resolution. Rather than simply dismissing the appeal and sending the parties back to the maintenance court, Justice Gordon-Turner crafted a comprehensive mediation order aimed at bringing about a consensual resolution that would serve the best interests of the 13-year-old child at the center of the dispute.
The Court’s order directs the parties “forthwith jointly to approach the Family Advocate’s office for mediation” to conclude a parental responsibilities and rights agreement under section 22 of the Children’s Act. This structured approach includes specific timelines, requiring the mediation to be completed by 28 February 2025, with the parties delivering their executed agreement to the child’s representative and the Court by 31 January 2025 or within 10 days of finalising mediation.
This mediation-focused resolution draws inspiration from the approach articulated in Marima v Lesele, where the Court emphasised that proceedings concerning children “should not simply proceed in the usual adversarial fashion” but should incorporate “opportunities for parties to conciliate, professional mediation assistance, professional reports by family advocates, family counsellors and others.” Justice Gordon-Turner specifically cited the guiding principle in Section 6(4) of the Children’s Act that “an approach which is conducive to conciliation and problem-solving should be followed and a confrontational approach should be avoided.”
What makes this aspect of the judgment particularly poignant is the Court’s reference to the Family Advocate’s investigation, which revealed that despite the appellant’s reluctance to engage with his son, the child himself expressed a desire to know his father. The Court quoted from a letter the child wrote to the appellant: “Hello Dad, I know we haven’t got the chance to meet each other but I would love to get to know you better and see what your [sic] like.” This heartfelt expression underscores that maintenance disputes impact not only financial welfare but also emotional and developmental needs.
The judgment reflects a nuanced understanding that financial support alone does not fulfill a parent’s entire role in a child’s life. As noted in SS v VVS, which the Court quotes at length, “impressive as its powers are, no court can direct a parent to love and recognise a child, critical as that may be to the full development of a child.” Nevertheless, the Court recognises its responsibility to create structures that encourage parental engagement, noting that “every child is deserving of the love and care that is necessary for their development.”
The mediation order represents a practical attempt to address both the financial and relational aspects of the parent-child relationship. It acknowledges the respondent’s reasonable proposals for maintenance and contact arrangements, while giving the appellant an opportunity to fulfill his earlier statement to the Family Counsellor that “he does not shy away from his responsibilities.”
By framing the mediation process within the context of section 22 of the Children’s Act (which provides for parental responsibilities and rights agreements), the Court creates a path for the appellant to formalise his relationship with his child in a way that goes beyond mere financial support. The judgment thereby transforms what began as an attempt to evade parental responsibilities into an opportunity for establishing a meaningful parent-child relationship.
This approach exemplifies the Court’s function as the upper guardian of minors, looking beyond the narrow legal questions presented by the appeal to address the fundamental needs of the child. It represents a judicial philosophy that sees family court processes not merely as mechanisms for resolving disputes, but as opportunities to foster relationships that support children’s holistic development.
Case Law
AD v OW (Centre for Child Law as Amicus Curiae) 2008 (3) SA 183 (CC) This Constitutional Court case is cited by Justice Gordon-Turner when discussing how child law requires flexibility and a focus on the child’s best interests rather than rigid legal formalities. The judgment quotes directly from paragraph 55 of AD v OW, which emphasises that “Child law is an area that abhors maximalist legal propositions” and that courts are “essentially guarding the best interests of the child, not simply settling a dispute between litigants.” This supports the Court’s child-centered approach throughout the judgment.
Cool Ideas 1186 CC v Hubbard 2014 (4) SA 474 (CC) This case is referenced regarding the purposive interpretation of statutes. The Court relies on Cool Ideas when establishing that the interpretation of section 28 of the Children’s Act must enable “a sensible purpose” to be attributed to the provision. This supports the Court’s conclusion that section 28 was not intended to allow parents to terminate their maintenance obligations.
Durban Corporation and Another v Rex 1946 NPD 109 This older judgment is cited alongside other authorities on the principle that repeal by implication is not favored in statutory interpretation. The Court uses this case to reinforce that the Children’s Act cannot be construed as implicitly repealing provisions of the Maintenance Act regarding parental duties of support.
Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC) The Court references Grootboom when discussing the discretionary nature of condonation for late filing of appeals. The case supports the Court’s approach to granting condonation despite deficiencies in the appellant’s application, recognising that a value judgment must be made based on the facts of each particular case.
Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motors Distributors (Pty) Ltd v Smit N.O. 2001 (1) SA 545 (CC) This Constitutional Court decision is cited for the principle that when confronted with two possible statutory interpretations – one constitutionally valid and one not – courts must adopt the constitutionally valid interpretation if it can reasonably be attributed to the provision. This supports the Court’s rejection of the appellant’s interpretation of section 28 of the Children’s Act.
Kent, N.O. v South African Railways and Another 1946 AD 398 Like Durban Corporation, this case is referenced regarding the principle that later statutes should not be interpreted to repeal earlier ones unless expressly stated or necessarily implied. This supports the Court’s finding that the Children’s Act did not repeal or override the provisions of the Maintenance Act.
KLVC v SDI (20334/2014) [2014] ZASCA 222; [2015] 1 All SA 532 (SCA) This Supreme Court of Appeal case is discussed in relation to the interpretation of section 21(1)(b) of the Children’s Act regarding unmarried fathers’ acquisition of parental responsibilities and rights. The FCP court notes that in KLVC, the SCA left open the debate about whether the requirements in section 21(1)(b) are conjunctive or alternative, while emphasising that determining whether these requirements are met is “an entirely factual enquiry.”
Master of the High Court Northern Gauteng High Court, Pretoria v Motala NO 2012 (3) SA 325 (SCA) This case is referenced to support the position that court orders issued without jurisdiction are nullities. The Court uses this principle to suggest that the Children’s Court order might be void because the appellant lacked standing to bring the application under section 28 of the Children’s Act.
Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] 2 All SA 262 (SCA) This landmark case on statutory interpretation is cited for the principle that statutes must be interpreted in accordance with the rules of grammar of a language. This methodological approach guides the Court’s textual analysis of section 28 of the Children’s Act and section 15 of the Maintenance Act.
Phumelela Gaming & Leisure Ltd v Grundlingh 2007 (6) SA 350 (CC) This Constitutional Court decision is cited for its emphasis that courts have no discretion regarding their duty to interpret statutes in a way that gives effect to the spirit, purport and objects of the Bill of Rights. This supports the Court’s rejection of interpretations that would diminish children’s constitutional rights.
Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA) The Court references Smith when determining that the maintenance magistrate’s judgment on the point in limine regarding jurisdiction was appealable, as it would be dispositive of the pending maintenance proceedings if overturned.
Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd 2009 (1) SA 337 (CC)This Constitutional Court case is cited in relation to statutory interpretation principles, specifically that when a provision is reasonably capable of two constitutionally valid interpretations, courts must adopt the one that better promotes the spirit, purport, and objects of the Bill of Rights. This supports the Court’s preference for an interpretation that preserves children’s rights to maintenance.
WW v EW 2011 (6) SA 59 (KZP) This case is referenced for its discussion of the concept of maintenance in common law, noting that “maintenance” is not defined in the Children’s Act and thus retains its common-law meaning. This supports the Court’s distinction between statutory parental responsibilities and the common law duty of support.
Zweni v Minister of Law and Order 1993 (1) SA 523 (A) The Court cites Zweni when determining that the maintenance magistrate’s judgment on jurisdiction was appealable because it was potentially dispositive of the pending maintenance proceedings. This supports the Court’s decision to hear the appeal despite it concerning only a preliminary point of law.
Skyway Management v Telkom Suid Afrika 2001 (2) SA 780 (T) This case is cited in the judgment regarding the presumption that the legislature does not intend to alter existing law more than necessary. Justice Gordon-Turner references this case when discussing principles of statutory interpretation that guide the court’s analysis of Section 28 of the Children’s Act.
Wendywood Development (Pty) Ltd v Rieger and Another 1971 (3) SA 28 (A) This case is quoted in the judgment when discussing the principle that statutes must be read together and that a later statute should not be construed to repeal provisions of an earlier one unless explicitly stated or necessarily implied. The judgment includes a direct quote from Wendywood Development via the Minister of Justice case.
Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development 2009 (4) SA 222 (CC) This Constitutional Court decision is referenced in relation to the interpretation of statutes through the lens of the best interests of the child. The judgment notes that statutes must be “interpreted so as to exclude a construction that would be inconsistent with the principle of the best interests of the child.”
Wessels v Wessels 2005 JDR 1410 (T) This case is mentioned in a footnote regarding the continuation of maintenance duties beyond a child’s attainment of the age of majority, supporting the court’s position on the enduring nature of maintenance obligations.
Bursey v Bursey and Another 1999 (3) SA 33 (SCA) This case is referenced in a footnote discussing when the common law duty of support can be terminated, specifically in relation to a child becoming self-supporting.
Questions and Answers
What is the main legal principle established in the FCP v STC and Another case? The main legal principle established is that a parent’s common law duty to support their child cannot be terminated through an application under Section 28 of the Children’s Act. The judgment clarifies that maintenance is not merely a “parental responsibility” that can be terminated, but rather an inherent duty arising from the parent-child relationship that exists independently of the statutory framework of parental responsibilities and rights. This duty continues even when other parental responsibilities and rights are terminated.
How does the judgment differentiate between parental responsibilities and the duty of support? The judgment makes a conceptual distinction between parental responsibilities and rights (care, contact, and guardianship) and the duty of support. For care, contact, and guardianship, the parent holds both the right/power and the corresponding duty/obligation—they “sit on both sides of the coin.” With maintenance, however, parents “hold no right and have only an obligation,” while the right to maintenance belongs exclusively to the child. This distinction is illustrated through the metaphor that maintenance is a “different coin” where “heads is the child’s right, and tails is the parent’s responsibility.”
What significance does Section 21(2) of the Children’s Act have in this judgment? Section 21(2) of the Children’s Act, which states “This section does not affect the duty of a father to contribute towards the maintenance of the child,” is pivotal to the judgment. The Court uses this provision to demonstrate that Parliament deliberately protected maintenance obligations from termination. The Court reasons that if Parliament had intended to allow termination of maintenance duties under Section 28, it would have included similar clarifying language. This provision also shows the special status of maintenance compared to other parental responsibilities.
On what basis did the appellant argue he should be exempt from paying maintenance? The appellant argued that the Children’s Court order granted under Section 28 of the Children’s Act, which stated that his “rights and responsibilities” in respect of the child were terminated, exempted him from his maintenance obligations. He contended that maintenance was listed as a parental responsibility under Section 18(2) of the Children’s Act and therefore was included in the generic termination of “responsibilities.” He further argued that neither the Children’s Court order nor the Children’s Act stipulated that maintenance obligations would persist after such termination.
Why did the Court find that the Children’s Court order potentially lacked validity? The Court found that the Children’s Court order potentially lacked validity because the appellant had no standing to bring the application under Section 28(3) of the Children’s Act. As an unmarried father who had not satisfied the requirements in Section 21(1) to acquire parental responsibilities and rights (having denied paternity, failed to contribute to the child’s upbringing, and made only intermittent maintenance payments), he was not a “co-holder of parental responsibilities and rights” as required by Section 28(3)(a). Additionally, there was no indication that he was granted leave to bring the application under alternative standing provisions.
How did the Court apply the principle against implied repeal in its interpretation? The Court applied the principle against implied repeal by emphasising that statutes must be read together and that a later statute (the Children’s Act) must not be construed to repeal provisions of an earlier one (the Maintenance Act) unless expressly stated or necessarily implied. Drawing on cases like Minister of Justice and Constitutional Development v Southern Africa Litigation Centre and Wendywood Development v Rieger, the Court concluded that since the Children’s Act did not expressly repeal Section 15 of the Maintenance Act, which codifies the common law duty of support, that duty remains intact regardless of any termination of parental responsibilities and rights under Section 28.
What role did the “best interests of the child” principle play in the Court’s interpretation? The “best interests of the child” principle was central to the Court’s interpretation. Drawing on Section 28(2) of the Constitution and Section 9 of the Children’s Act, the Court emphasised that statutes must be interpreted to prioritise children’s best interests. The judgment noted that there could be “no legitimate scenario in which the termination of the obligation to pay maintenance, where there is a need, would ever be in a child’s best interests.” This constitutional imperative guided the Court toward an interpretation that preserved children’s rights to financial support from both parents.
How did the Court view the appellant’s approach to the Children’s Court? The Court viewed the appellant’s approach to the Children’s Court as forum shopping and an abuse of process. Justice Gordon-Turner described it as “akin to forum shopping” and expressed disapproval that the Children’s Court “unwittingly became an agent assisting the appellant to sidestep his obligations.” The Court particularly highlighted the suspicious timing—just eight days after being served with maintenance proceedings—and the appellant’s own statements revealing financial motivations, noting that his application was preoccupied with “the financial impact of a maintenance order.”
What did the Court identify as deficiencies in the Children’s Court proceedings? The Court identified several serious deficiencies in the Children’s Court proceedings, including: failure to consider the best interests of the child as required by Section 28(4)(a); failure to appoint a legal representative for the child under Section 29(6); failure to call for reports from the Family Advocate or social workers under Section 29(5)(a); and failure to verify the appellant’s standing under Section 28(3). The Court described these omissions as “an egregious neglect of its duty to place the child first and to show respect for M’s rights.”
What practical approach did the Court take to resolve the underlying dispute? The Court took an innovative practical approach by ordering the parties to engage in mediation with the Family Advocate to conclude a parental responsibilities and rights agreement under Section 22 of the Children’s Act. This structured order included specific timelines for completing mediation by 28 February 2025 and submitting the agreement to the Court. This approach sought to transform what began as an attempt to evade parental obligations into an opportunity for establishing a meaningful parent-child relationship, while still ensuring the child’s financial needs would be met.
How does this judgment clarify the jurisdiction of Children’s Courts in maintenance matters? The judgment clarifies that Children’s Courts have limited jurisdiction in maintenance matters. Drawing on Ex parte Sibisi and SF v TD, the Court notes that “A maintenance order simpliciter is not listed in s 46 of the Children’s Act as one of the orders that a children’s court may make.” The judgment reinforces that maintenance falls primarily within the domain of maintenance courts established under the Maintenance Act, and a Children’s Court cannot be used to circumvent or undermine maintenance proceedings.
What implications does this judgment have for maintenance applicants? The judgment strengthens the position of maintenance applicants by establishing that a parent’s duty to maintain their child cannot be evaded through Section 28 applications. It closes a potential loophole that might have allowed parents to escape financial responsibilities through Children’s Court orders. The judgment also acknowledges the frustration of maintenance applicants with delays and procedural obstacles, referencing the respondent’s “understandable” frustration with “failings in the administration of justice” after multiple attempts over years to secure maintenance.
How did the Court interpret the requirements in Section 21(1)(b) for unmarried fathers? The Court interpreted the three requirements in Section 21(1)(b)—consent to be identified as the father, contribution to the child’s upbringing, and contribution to maintenance expenses—as cumulative rather than alternative. Following the reasoning in Marima v Lesele, the Court emphasised that the use of “and” rather than “or” between these requirements indicated Parliament’s intent that all three must be satisfied for an unmarried father to acquire parental responsibilities and rights automatically.
What significance did the Court attach to the child’s own wishes? The Court placed significant emphasis on the child’s wishes, quoting directly from a letter the child wrote expressing his desire to meet his father: “Hello Dad, I know we haven’t got the chance to meet each other but I would love to get to know you better.” This personal expression helped inform the Court’s mediation order, which aimed to facilitate not just financial support but also relationship-building. The judgment acknowledged that while courts cannot “direct a parent to love and recognise a child,” they can create structures that encourage fulfillment of parental responsibilities.
How does this judgment relate to South Africa’s international obligations? The judgment explicitly connects its interpretation to South Africa’s international obligations under the United Nations Convention on the Rights of the Child, particularly Article 27. This provision requires states to “recognise the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development” and “take all appropriate measures to secure the recovery of maintenance for the child from the parents.” The Court notes that these obligations are referenced in the preamble to the Maintenance Act itself, reinforcing the importance of maintenance in the legal framework protecting children’s rights.
What did the Court identify as the only legitimate ways a maintenance obligation could be terminated? The Court identified only three legitimate scenarios in which a maintenance obligation could be terminated: when the child becomes self-supporting (as per Bursey v Bursey); when the child has died; or through a valid adoption order under Section 242 of the Children’s Act, which transfers the obligation from the biological parent to the adoptive parent while preserving the child’s right to be maintained. The judgment emphasises that historically “The common-law simply made no provision for any other situation that would entitle a party to terminate his/her maintenance obligation towards his/her child.”
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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