Authored By: Kelvin Dlamini
UNISA
CASE SUMMARY: KLVC v SDI and Another [2015] 1 All SA 532 (SCA)
- Introduction
KLVC v SDI and Another [2015] 1 All SA 532 (SCA) is an important South African family-law case that deals with the responsibilities of parents and the rights of a biological father who’s not married. The case was heard in the Supreme Court of Appeal (SCA) on 12 December 2014.¹ The main issue was whether an unmarried father had been given full parental responsibilities and rights in terms of section 21(1)(b) of the Children’s Act 38 of 2005.²
The importance of the case restarted because the mother removed the child from South Africa and relocated to England without the father of the child knowing. The English court, dealing with proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980, required a South African court to determine whether the removal of the child was lawful under South African law.³
The SCA held that the father had satisfied the requirements of section 21(1)(b) of the Children’s Act and had received full parental responsibilities and rights. His consent was therefore needed before the child could be removed from South Africa.
- Facts of the Case
The appellant and the first respondent were the biological parents of a minor child, referred to as “S” in the judgment. The child was born in Durban, South Africa, on 30 July 2012. The parties had never been married and had never lived together in a permanent life partnership.⁴
The first respondent was the child’s biological father and had consented to being identified as the child’s father. He wanted to participate in the child’s life and attempted to contribute to the child’s upbringing and maintenance.
On 28 November 2012, when the child was approximately four months old, the appellant removed the child from Durban and relocated with him to England. She did this without informing the father and without obtaining his consent or permission.⁵
The father next approached the English court in terms of the Hague Convention. He wanted the return of the child to his habitual place of residence in Durban. His argument was that the mother had wrongfully removed the child because she had disrespected his parental rights by failing to get his permission before taking the child out of South Africa.
The English court could not finally determine whether the removal was wrongful because this depended on whether the father had rights of custody under South African law immediately before the removal. The English court therefore referred the relevant question to a South African court for determination.⁶
- Legal Issue
The main legal issue was whether the unmarried father had received full parental responsibilities and rights under section 21(1)(b) of the Children’s Act.
Section 21(1)(b) provides that an unmarried biological father acquires full parental responsibilities and rights if he:
- Agrees to being identified as the child’s father or successfully applies to be identified as the father;
- Contributes or attempts in good faith to contribute to the child’s upbringing for a reasonable period; and
- Contributes or attempts in good faith to contribute towards expenses connected with the maintenance of the child for a reasonable period.⁷
The Court therefore had to determine whether the father had satisfied these requirements before the child was removed from South Africa.
A further issue was whether the father’s rights included guardianship and, consequently, whether his permission was necessary before the child could be removed from South Africa.
- Decision of the Court
The matter was first considered by the KwaZulu-Natal Local Division of the High Court. The court a quo found in favour of the father.
It held that the father had satisfied the requirements in section 21(1)(b)(i)–(iii) of the Children’s Act and had therefore received full parental responsibilities and rights in respect of the child.⁸
The court concluded that, because the father had received parental rights and responsibilities, he was a co-guardian of the child. His consent was therefore needed before the child could be removed from South Africa.
The appellant appealed against this decision to the Supreme Court of Appeal.
- Arguments of the Appellant
The appellant argued that the father had not met the requirements of section 21(1)(b). She contended that he had not contributed the way he had supposed to, or at all, to the child’s upbringing and maintenance for a reasonable period.
The appellant relied on the fact that the father had not been present at the child’s birth and that the parents had never lived together. She also raised allegations concerning the father’s lifestyle and conduct.
Another argument was that the three requirements in section 21(1)(b) were cumulative. The appellant relied on the use of the word “and” and argued that the father had to satisfy all the requirements before he could automatically acquire full parental responsibilities and rights.⁹
She further argued that the father was not exercising rights of custody when the child was removed from South Africa. Therefore, according to the appellant, the removal did not constitute a wrongful removal under the Hague Convention.
- Judgment of the Supreme Court of Appeal
The SCA dismissed the appeal and confirmed that the father had acquired full parental responsibilities and rights.
The Court explained that determining whether an unmarried father had satisfied section 21(1)(b) was primarily a factual enquiry. The court had to consider all the relevant circumstances of the particular case rather than applying a rigid formula.¹⁰
The Court also explained that the Legislature had deliberately used broad expressions such as “contribute” and “for a reasonable period”. The Act did not prescribe a specific amount of money that an unmarried father had to contribute or a fixed period during which he had to contribute. What mattered was the nature and extent of his contribution in the circumstances of the particular case.
The Court therefore rejected an approach that would require an unmarried father to make a predetermined level of contribution before obtaining parental rights.
- Contribution to the Child’s Upbringing
The SCA found that the father had satisfied the requirement relating to the child’s upbringing.
The evidence showed that the father had made efforts to be involved in the child’s life. He visited and interacted with the child regularly and introduced the child to members of his extended family. He also expressed an intention to participate in the child’s future upbringing.¹¹
The Court considered the circumstances that had made it difficult for the father to become involved. The appellant had prevented him from attending further medical scans after the first three months of the pregnancy. She also refused to allow him to be present at the child’s birth.
Despite these circumstances, the father continued trying to establish a relationship with his child. The Court was satisfied that his efforts demonstrated a genuine and good-faith attempt to contribute to the child’s upbringing.
The SCA therefore concluded that the requirement in section 21(1)(b)(ii) had been satisfied.
- Contribution Towards Maintenance
The Court also considered whether the father had contributed, or attempted in good faith to contribute, towards the child’s maintenance.
The evidence showed that the father purchased several items for the child, including a heater, a pram, a car seat, clothing, nappies and other necessities. He also built a changing table for the child.¹²
The father attempted to provide medical aid for the child, although the appellant declined the offer. He also attempted to provide financial assistance but was not given the banking details necessary to make certain payments.
The evidence indicated that the father had contributed approximately R14 000 towards the child’s expenses, which amounted to approximately 11.5 per cent of the expenses during the relevant period.¹³
The Court held that the legislation did not require a particular monetary contribution. The important question was whether the father had contributed or genuinely attempted to contribute towards the child’s maintenance for a reasonable period.
The Court found that the father’s offers and attempts were made in good faith. The fact that some of his offers were rejected by the mother did not mean that he had failed to satisfy the statutory requirement.¹⁴
- Acquisition of Parental Responsibilities and Rights
After considering the evidence, the SCA concluded that the father had met the requirements of section 21(1)(b).
He had consented to being identified as the child’s father. He had made genuine efforts to contribute to the child’s upbringing and had contributed or attempted in good faith to contribute towards the child’s maintenance.
The Court therefore held that the father had acquired full parental responsibilities and rights before the child was removed from South Africa.¹⁵
This meant that the father had guardianship of the child. Section 18 of the Children’s Act recognises important responsibilities and rights associated with guardianship, including consent to the child’s departure or removal from the Republic.¹⁶
- Removal of the Child from South Africa
The Court then considered whether the appellant was entitled to remove the child from South Africa without the father’s consent.
It was common cause that the appellant had not obtained the father’s consent and had not obtained permission from a competent South African court before removing the child.¹⁷
Because the father had acquired full parental responsibilities and rights, his consent was required before the child could be removed from South Africa.
The SCA therefore agreed with the court a quo that the removal of the child was contrary to the father’s parental rights. The Court answered the question referred by the English court in the negative. It was not lawful, in the circumstances, for the appellant to change the child’s place of residence from South Africa to England without the father’s prior consent or the permission of a competent South African court.¹⁸
- Hague Convention
The Hague Convention was relevant because it deals with the wrongful removal or retention of children across international borders.
Article 3 of the Convention provides that the removal of a child is wrongful where it breaches rights of custody attributed to a person under the law of the state in which the child was habitually resident immediately before the removal, provided that those rights were actually exercised or would have been exercised but for the removal.¹⁹
The South African court therefore had to determine whether the father possessed relevant custody rights under South African law at the time the child was removed.
Since the SCA found that the father had acquired full parental responsibilities and rights before November 2012, his rights included guardianship and the right to consent to the child’s removal from South Africa.
- Final Judgement
The SCA dismissed the appellant’s appeal with costs.²⁰
The Court considered the appellant’s conduct during the litigation and found that she had adopted a difficult and obstructive approach. The Court also found that she had raised allegations against the father that were largely irrelevant to the legal question that had to be decided.
The final order was therefore that the appeal was dismissed with costs.
- Importance of the Case
The case is important in South African family law because it confirms that an unmarried biological father can acquire full parental responsibilities and rights even though he was never married to, or living with, the child’s mother.
The judgment also demonstrates that the requirements in section 21(1)(b) must be considered in the context of the particular circumstances of each case. There is no fixed amount of money that an unmarried father must contribute, nor is there a fixed form of participation required.
Another important principle is that a parent who has acquired parental responsibilities and rights cannot simply have those rights ignored when the child is relocated to another country. Where guardianship rights are involved, the required consent must be obtained before the child is removed from South Africa.
The case therefore promotes the recognition of parental rights while also protecting the interests of children and the importance of maintaining relationships between children and their biological parents.
- Conclusion
In conclusion, KLVC v SDI and Another concerned whether an unmarried biological father had acquired full parental responsibilities and rights under section 21(1)(b) of the Children’s Act. The SCA found that he had satisfied all the relevant requirements by consenting to be identified as the child’s father, attempting in good faith to participate in the child’s upbringing and contributing towards the child’s maintenance.
As a result, the father had acquired full parental responsibilities and rights, including guardianship. His consent was therefore required before the child could be removed from South Africa. The mother’s removal of the child without his consent or the permission of a competent court was consequently contrary to his parental rights.
The case remains significant because it demonstrates that unmarried fathers can acquire full parental rights through genuine involvement in their children’s lives. It also emphasises that courts must examine the facts and circumstances of each case rather than imposing rigid requirements on unmarried fathers.
OSCOLA FOOTNOTE(S):
- KLVC v SDI and Another [2015] 1 All SA 532 (SCA) 532–534.
- Children’s Act 38 of 2005, s 21(1)(b).
- KLVC v SDI and Another (n 1) 534–536.
- ibid 534.
- ibid.
- ibid 535–536.
- Children’s Act 38 of 2005, s 21(1)(b)(i)–(iii).
- KLVC v SDI and Another (n 1) 535.
- ibid 536–537.
- ibid 537.
- ibid 538–539.
- ibid 539.
- ibid.
- ibid 539–540.
- ibid 540.
- Children’s Act 38 of 2005, s 18(2)(c).
- KLVC v SDI and Another (n 1) 540.
- ibid.
- Hague Convention on the Civil Aspects of International Child Abduction 1980, art 3.
- KLVC v SDI and Another (n 1) 541.
BIBLIOGRAPHY
Cases
Fraser v Children’s Court, Pretoria North and Others 1997 (2) SA 261 (CC).
KLVC v SDI and Another [2015] 1 All SA 532 (SCA).
RRS v DAL (22994/2010) [2010] ZAWCHC 618.
Legislation
Children’s Act 38 of 2005.
Constitution of the Republic of South Africa, 1996.
International Instruments
Hague Convention on the Civil Aspects of International Child Abduction 1980.
