Johannesburg – A pair of parents embroiled in a legal squabble in which the mother disputes that the father has parental rights and responsibilities have been referred to mediation.
South Gauteng High Court, Johannesburg, Acting Judge Vlad Movshovich delivered an order this week referring the former lovers to the Family Advocate’s office for mediation.
he father launched the application at the court. He sought an order declaring that he holds full parental rights and responsibilities toward their 11-year-old son in terms of the Children’s Act.
The mother opposed his application. She argued that he can’t claim fathership because he was not in a permanent life-partnership with her at the time of the child’s birth.
Her second argument was that he did not meet requirements prescribed in the Children’s Act for an unmarried man to acquire full parental rights and responsibilities.
These requirements, detailed under section 21 of the Children’s Act, stipulated partly that an unmarried man gains full parental rights and responsibilities if he consents or successfully applies to be identified as the child’s father or pays damages in terms of customary law.
Another requirement was that he contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period.
In this case, the mother also disputed the biological father’s commitment to being a father to the child.
“Certain facts are common cause between the parties,” said Judge Movshovich in his judgment. “The child’s birth was a result of a relationship which has long come to an end.
“The applicant has in the court papers confirmed his consent to be identified as the child’s father, although the respondent disputes the applicant’s de facto commitment to being a father to the child.
“It is also accepted on the papers that the applicant has made some payments towards the care of the child.”
The father also wanted the child to benefit from his grandmother’s estate. He submitted that those benefits may only be accessed if the declaratory order sought is granted.
Judge Movshovich voiced circumspection to make an order in this case prior to a mediation between the mother and father.
He pointed out too that the insertion of the word “must” in section 21(3) of the Children’s Act “renders a referral to mediation, ordinarily, mandatory”.
“In the circumstances and in the exercise of the court’s powers and discretion under the Act, I intend to refer this matter for mediation to the Family Advocate’s office, with a concrete timetable and reporting obligations,” he said.
This was Judge Movshovich’s final order: “The applicant and respondent are directed forthwith jointly to approach the Family Advocate’s office in this regard,” he said.
He added that the pair “must use all reasonable endeavours to participate in the mediation with a view to reaching an amicable resolution, or at the very least narrowing down the scope of their disputes”.
The matter will go back to the court after the mediation process.
“The interests of justice dictate that this matter should be pended until those processes have run their course and must be re-enrolled on the motion court roll, with a preferential hearing date insofar as possible, so that the matter may be finally determined should the mediation process not yield a final agreement on all relevant issues,” said Judge Movshovich.
