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Chapter 5:08

Guardianship Of Minors Act

 

Acts 34/1961, 43/1973, 42/1978, 19/1980, 29/1981 (s. 59), 39/1983 , 9/1997 (s. 10), 22/2001, 23/2001 (s. 49), (s. 4), 14/2002 (s. 5).

 

 

1    Short title

This Act may be cited as the Guardianship of Minors Act [Chapter 5:08].

                       2    Interpretation

In this Act—

“clerk of a children’s court” and “children’s court” shall have the meanings, respectively, given to them by the Children’s Act [Chapter 5:06].

[Definition amended by section 49 of act 23 of 2001]

“Minister” means the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to whom the President may, from time to time, assign the administration of this Act.

[Definition inserted by section 4 of Act 14/2002.]

3 Duty of father to consult mother on question of guardianship of minor Where the parents of a minor—

  • are living together lawfully as husband and wife; or
  • are divorced or are living apart and the sole guardianship of the minor has not been granted to either of them by order of the High Court or a judge;

the rights of guardianship of the father shall be exercised in consultation with the mother, and if a decision of the father on any matter relating to guardianship is contrary to her wishes and in her opinion likely to affect the life, health or morals of the minor to his detriment, the mother may apply to a judge in chambers, who may make such order in the matter as he thinks proper.

                       4    Guardianship and custody of minors

(1) The High Court or a judge thereof may—

  • on the application of either parent of a minor in proceedings for divorce or judicial separation in which an order for divorce or judicial separation is granted; or
  • on the application of either parent of a minor whose parents are divorced or are living apart; if it is proved that it would be in the interests of the minor to do so, grant to either parent the sole guardianship, which shall include the power to consent to a marriage, or sole custody of the minor, or order that on the predecease of the parent named in the order, a person other than the survivor shall be the guardian of the minor, to the exclusion of the survivor or otherwise.
  • An order under subsection (1) granting the sole guardianship or custody of a minor whose parents are living apart to a parent shall, if the parents become reconciled and live together again as husband and wife, lapse with effect from the date on which the parents commence to live together again.
  • Subject to any order of court—
  • a parent to whom the sole guardianship or custody of a minor has been granted under subsection (1) may, by testamentary disposition, appoint any person to be the sole guardian or to be vested with the sole custody of the minor, as the case may be;
  • a parent who has the sole custody of a minor in terms of subsection (1) of section five or by virtue of any order made in terms of that section may, by testamentary disposition, appoint any person to be vested with the sole custody of the minor;
  • the father of a minor to whom the sole guardianship of the minor has not been granted under subsection (1) shall not be entitled by testamentary disposition to appoint any person as the guardian of the minor in any other manner than to act jointly with the mother.
  • Where the mother and a testamentary guardian of a minor act as joint guardians and they are unable to agree on any question affecting the welfare of the minor, the wishes of the mother on that question shall prevail:

Provided that the testamentary guardian, if he is of the opinion that the life, health or morals of the minor may be affected to his detriment, may apply to the High Court for directions, and the court may make such order regarding the matters in difference as it may think proper.

  • The High Court or a judge thereof may—
  • where a parent has appointed a guardian or custodian as provided in paragraph (a) or (b) of subsection (3); or
  • where a guardian has been appointed to a minor by the father to act jointly with the mother; upon the application of the other parent or of the guardian or mother, as the case may be, made after the death of the testator, make such order in regard to the guardianship or custody of the minor as the court or judge may consider to be in the best interests of the minor.
  • A disposition made by a parent in terms of paragraph (a) or (b) of subsection (3) shall cease to be of any effect if during his lifetime that parent ceases to be the sole guardian or, as the case may be, is no longer vested with the custody of the minor concerned.
  • A wife may make any application referred to in this section, and any application to a court in connection therewith, without the assistance of her husband.

                       5    Special provisions relating to custody of minors

  • Where either of the parents of a minor leaves the other and such parents commence to live apart, the mother of that minor shall have the sole custody of that minor until an order regulating the custody of that minor is made under section four or this section or by a superior court such as is referred to in subparagraph (ii) of paragraph (a) of subsection (7).
  • Where—
  • the mother of a minor has the sole custody of that minor in terms of subsection (1); and
  • the father or some other person removes the minor from the custody of the mother or otherwise denies the mother the custody of that minor; the mother may apply to a children’s court for an order declaring that she has the sole custody of that minor in terms of subsection (1) and, upon such application, the children’s court may make an order declaring that the mother has the sole custody of that minor and, if necessary, directing the father or, as the case may be, the other person to return that minor to the custody of the mother.

[Subsection amended by section 49 of act 23 of 2001]

(3) Where the mother of a minor has the sole custody of that minor in terms of subsection (1), a children’s court may at any time, upon the application—

  • of the mother, make an order directing the father to pay, either weekly or monthly, to the applicant such reasonable sum for the maintenance of that minor as the court thinks fit; or
  • of the father, make an order depriving the mother of the sole custody of the minor and granting the sole custody of the father if the court is satisfied that it is in the best interests of that minor that the father be granted the sole custody of that minor and, further, make such order relating to the payment of maintenance by the mother and the right of the mother to have access to that minor as the court thinks fit; or
  • of the father, make an order for the father to have such access to that minor as the court specifies as being reasonable in the circumstances, unless the court is of the opinion that it would be detrimental to the welfare or interests of that minor for the father to have any right to access; or
  • of either parent, make such order in regard to the custody of that minor, the payment of maintenance for and the right of access to that minor as will give effect to the terms of any settlement reached between the parents of that minor.

[Subsection amended by section 49 of act 23 of 2001]

(4) An application in terms of subsection (2) or (3) may be made to any children’s court and that court may, at any stage of the proceedings—

  • remit the matter to another children’s court for the taking of evidence; or
  • transfer the application to another children’s court for the determination of that application by that children’s court.

[Subsection amended by section 49 of act 23 of 2001]

  • The Maintenance Act [Chapter 5:09] shall apply, mutatis mutandis, in relation to an order for maintenance referred to in subsection (3) as if it were an order for maintenance referred to in section 6 of the Maintenance Act [Chapter 5:09].
  • If, upon an application made in terms of subsection (2) or (3), the children’s court is satisfied that both parents are unfit to have custody of the minor, it may make an order in terms of subparagraph (i), (ii), (iv), (v) or (vi) of subsection (1) of section 20 of the Children’s Act [Chapter 5:06] in respect of the minor.

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