1. Introduction

The issue of co – parenting and the maintenance of a child or children between couples is often a tricky situation, especially, if there is no cohesion between both parents and/or guardians of the minor child(ren) in such a situation. The animosity that normally brews from a couple’s failed relationships has cascading effects onto the maintenance and welfare of the innocent minor child(ren).

In law, litigants argue one and the same cases every day, i.e. custody and maintenance of a minor child, divorce settlements, restitution of conjugal rights etc, but each case comes with its own unique circumstances for the court to make its own determination and hand down a judgement. This has led to lawmakers come up with certain legal principles to ensure uniformity and consistent application of the rule of law, regardless of the unique circumstances of each case brought before court.

Section 252 subsection (1) of our Constitution provides for Roman Dutch Common Law principles and rules to be applicable and enforced as law of the country. Ancient Roman Dutch Common Law principles provided that a child born from a marriage is the responsibility of the father and custody is to be given the father as that child would inherit from his estate. It further provided that a child born out of wedlock is the sole responsibility of the mother as that child would not benefit from the father’s estate.

This has been very much common in the South African jurisdiction which also ascribes to Roman Dutch Common Law principles and rules, whereby a child born out of wedlock takes up the mother’s surname instead of the father, unlike a child born within a marriage who assumes the father’s surname. However, as this may be the case, with the recent constitutional dispensation it has allowed abolishing of such archaic principles in society such as an illegitimate child, the rights of a child have now been enshrined and protected by the constitution itself.  

The principle of the best interest of the child principle is a foundational legal and ethical standard prioritizing a child’s well-being in decisions affecting them. It is rooted in international law, particularly Article 3 of the UN Convention on the Rights of the Child (UNCRC), it mandates that all actions concerning children must consider their best interests as a primary factor

 

2. The Best Interest of the Child Principle

“The Best Interest of the Child” principle is the principle used to determine cases of custody and maintenance of a minor child, not only in our jurisdiction, but most progressive jurisdictions. The common saying in the English language that, “when two bulls fight, the grass suffers the most” elucidates the reason why lawmakers adopted this principle, to avoid the suffering of a minor child when parents or guardians battle it out in court for the custody and maintenance of a minor child.

This principle is imperative because often times the litigants in such matters i.e. parents to a minor child, are still fighting disputes of their failed relationship and the custody and maintenance of the minor child becomes the battlefield where each party wants to strike a blow to hurt the other. This is by either syphoning money in the name of child maintenance and/or depriving one parent from access and the upbringing of the child.

THE CHILD PROTECTION AND WALFARE ACT OF 2012 embodies this age old principle under section 200 (3) which provides as follows:

“The Children’s Court shall consider the best interests of the child and the importance of the child being with his mother when making an order for custody or access”.

The principle provides that the Court in its exercise of its inherent common law powers as the upper guardian of all minors within the Kingdom, may declare that the mother’s rights as the natural guardian be taken away for good cause shown. In such instances the Court must regard the interests of the child as paramount and treat the mother’s right as being a prima facie one.

Broome J in DUSTERVILLE V. DUSTERVILLE 1946 NPD 594 AT 597 stated that it was often said that the best person to look after young children is their mother. Experience goes to show that a child needs both a father and a mother, and that, if s/he grows up without either, he will, to some extent, be psychologically handicapped. The maternal link is forged earlier in the child’s life than the paternal, and if not forged early may never be forged at all. The psychological need of a father, on the other hand, only arises later. If the mother is awarded their custody, at any rate during their years of infancy, they will not necessarily grow up as fatherless children, for the relationship between a father and his young children is never one of continuous intimacy, but is necessarily intermittent. The children will realise that they have a father, notwithstanding that they do not see him every day. And when they reach the age at which a father becomes an important factor in their lives, there will be nothing to hinder the forging of the paternal link.

In the South African case of Van der Linde vs Van der Llnde 1996 (3) S.A. 509 (OPD), the learned Judge opined that, “Today the man has the freedom to reveal and to live out his mothering feeling. A father can be just as good a “mother” as the biological mother and naturally a mother can be just as good as “father” as the biological father. The quality of a parental role is not simply determined by gender

 

In the case of Nokukhanya Mabuza v Bheki Zwane (136/11) [2012] SZHC 100 (30 April 2012), court granted an order of custody to the respondent who was the father. The court considered all material facts putting the welfare of the child first whom on application had to be uprooted from the school which the father had already enrolled him to. The court dismissed this application citing the best interest of the child who had already begun schooling while staying with the father and uprooting the child from the school and his father’s family was not in his best interest considering the distance the child would have to travel every day to school if custody were to be granted to the mother.

The courts use this principle to filter all the pertinent issues raised by the litigants, to what is the best interest of the minor child. Courts ought to consider all pertinent facts of the matter and all legislation promulgated protecting the fundamental rights of an individual entrenching the bill of rights to ensure the complete protection of these rights in law. The rights of the child are considered to be paramount in adherence to the principle in cognizance of section 22 of our constitution which provides for equality before the law. Section 29 of the Constitution explicitly protects the rights of a child and subsection 3 provides for the right of a child to be properly cared for and brought up by parents or any lawful authority in place of parents. 

3. The Protection of Fundamental Rights of the Individual

The protection of fundamental rights of the individual is a cornerstone of democratic societies and is enshrined in national constitutions. Fundamental rights are basic human freedoms and entitlements that every individual is inherently entitled to, regardless of nationality, gender, religion, or economic/financial status etc.

In the case of Thembinkosi Bafana Mavuso vs Londiwe Hlophe and Others (1511/2016) SZHC 115 [2017] (17/02/2017) where the Applicant was the father to the minor child and more financially stable when compared to the mother, the court pronounced that best interests of the child was that the mother retains sole custody of the minor. And that the father must not be alienated from his child. Therefore, again in the best interests of the minor, the father shall gain the obligatory status of being the guardian of the minor with all the antecedent duties that status bears, which includes but is not limited to the duty to support the child. Also as a father he has the right to reasonable and unfettered access to his child and an appropriate order on such access shall be given unless the parties agree on a suitable and reasonable schedule of visitations by the minor to the Applicant. Regardless of the financial standing of the mother, the court found that the best interest of the child was to be with the mother and the father as well should have reasonable access to the child for him to provide the much needed support and be part of the child’s upbringing.

The best interest principle remains a dynamic, child-centred tool designed to adapt to individual circumstances while safeguarding fundamental rights. Its effectiveness hinges on balancing legal frameworks with nuanced, evidence-based assessments of each child’s unique needs.

-for further information and legal advice on the above you may contact the writer.