Parental Rights and Responsibilities in South Africa

Abstract

The Children’s Act 38 of 2005 revolutionised how parental responsibilities and rights are obtained in South Africa. The old common-law model of parental authority was replaced with a new statutory, child-centred approach. Section 19 grants parental responsibilities and rights to a biological mother. Section 21(1) gives unmarried biological fathers an avenue to obtain full parental responsibilities and rights by meeting certain statutory requirements. This article contends that, despite the progressive intent in Section 21, its implementation might result in unfairness against committed unmarried fathers in instances where financial contribution, the cooperation of the mother and the broader socioeconomic context are too narrowly considered. The article concludes that the courts should interpret Section 21 broadly and that legislative amendment should clarify the legal effect of good-faith attempts to comply, so shared parenting is promoted consistently with the principles of equality, dignity and the best interests of the child.

Definition of Keywords

Parental Responsibilities and Rights

For purposes of this article, parental responsibilities and rights refer to the legally recognised incidents of parenthood that allow a person to care for a child, maintain contact with the child, act as guardian, and contribute to maintenance. This meaning is drawn from section 18 of the Children’s Act and should be read with the statutory wording rather than treated as a free-standing common-law definition.[1]

1. The responsibility and right to provide care for the child.
2. The responsibility and right to maintain regular contact with the child.
3. The duty to contribute to the financial maintenance of the child.
4. The responsibility and right to serve as the child’s legal guardian.

Unmarried biological fathers

In this discussion, an unmarried biological father means a biological father who does not acquire parental responsibilities and rights through marriage to the child’s mother. His legal position is therefore determined mainly by section 21 of the Children’s Act, which recognises parental status where the father satisfies the statutory requirements relating to paternity, upbringing, and maintenance.[2]

Best Interest of the Child

The best-interests principle is the constitutional standard that requires decisions concerning children to place the child’s welfare at the centre of the enquiry. In matters involving unmarried fathers, this principle requires courts to consider whether recognising, limiting, or regulating paternal involvement will best promote the child’s care, stability, and development.[3]

1. Introduction

South African family law has undergone a radical transformation since the adoption of the Constitution. The previous adult-centred system of parental authority has been replaced by a child-centred system in which children’s rights, equality, dignity and the best interests of the child play a determinative role in the interpretation of family law. The Children’s Act 38 of 2005 gives practical effect to this constitutional approach by, among other things, defining parental responsibilities and rights and regulating how various categories of parents acquire parental responsibilities and rights.[4]

Yet, real-life problems have arisen regarding how an unmarried father can acquire and exercise those rights. The Act confers parental responsibilities and rights upon the biological mother through Section 19. Section 21, on the other hand, states that an unmarried father must meet certain statutory requirements. Including acknowledgement of paternity, the person must have contributed or at least made a genuine effort to contribute to the child’s care and maintenance to be conferred with parental rights and responsibilities. The issue is not that the Act differentiates between mothers and unmarried fathers, but that strict application of those requirements may be unfair in cases where, for instance, poverty, unemployment, or maternal interference precludes obvious contribution.

The conundrum is thus one of application and evidentiary burden. Constructed as essentially monetary, contribution would render section 21 a point of contention, delay and parental disengagement rather than a tool of committed fatherhood recognition.

This article reviews the case law pertaining to the interpretation and application of Section 21 of the Children’s Act 38 of 2005. It is submitted that socioeconomic disadvantages and maternal gatekeeping can in practice disempower dedicated unmarried fathers from having an opportunity to show compliance with the statutory requirements, despite their bona-fide efforts to take on parental responsibility. This article consequently advocates a more purposive approach to Section 21 and its legislative clarification, which should also consider the possible introduction of a rebuttable presumption of parental recognition in favour of biological fathers, always subject to the best interests of the child and to safeguard against abuse, neglect, or proven unsuitability.

2. Background

• Common-law position

Historically, South African private law placed strong emphasis on the marital family and treated the married father as the principal holder of parental authority. This framework gave legal preference to marriage and reflected older assumptions about paternal control, maternal dependence, and the legal status of children born within marriage.[5]

Children born outside marriage were historically placed in a weaker legal position, and unmarried fathers did not automatically enjoy the same parental status as married fathers. The older language of illegitimacy and the idea that the unmarried father lacked automatic parental authority illustrate the extent to which family status shaped legal recognition.[6]

Later statutory developments improved the legal position of married mothers and adjusted aspects of guardianship, but they did not fully resolve the position of unmarried biological fathers. The Children’s Act therefore became the main legislative mechanism through which unmarried fathers could acquire parental responsibilities and rights without first relying solely on court intervention.[7]

• Paradigm shift

The constitutional framework requires family-law rules to be interpreted through the values of equality, dignity and children’s rights. Section 28(2) is vital because it requires every legal decision concerning a child to treat the child’s best interests as paramount, rather than merely as one factor among others.[8]

Section 39(1) further requires courts to consider international law when interpreting the Bill of Rights. This reinforces a child-centred reading of parental responsibilities and rights, particularly where international instruments emphasise family care, parental involvement, and protection of the child’s welfare.[9]

• The Children’s Act 38 of 2005

The Children’s Act has two streams in relation to parental responsibilities and rights. A biological mother automatically acquires parental responsibility and rights in terms of Section 19. An unmarried biological father has to fall back on Section 21, unless he can qualify under another statutory basis. This is designed to recognise committed biological fathers, without conferring automatic parental status on every unmarried father.[10]

In simplified terms, section 21 recognises an unmarried father where he satisfies the relevant requirements concerning identification as the father, contribution or attempted contribution to upbringing, and contribution or attempted contribution to maintenance. The exact statutory wording should be cited when this list is used in the final version:[11]

1. He acknowledges paternity of the child;
2. He contributes or attempts to contribute in good faith to the child’s upbringing;
3. He contributes or attempts to contribute to the financial maintenance of the child.

3. Critical Legal Analysis of Section 21

• Socioeconomic Critique: Good-faith Contribution

Section 21(1)(b) is most vulnerable where the requirement of contribution is interpreted narrowly. Although the section expressly recognises the attempts made in good faith, a financial or formalistic reading may disadvantage low-income and unemployed fathers who are willing to parent but cannot demonstrate contribution in conventional monetary terms. In a country marked by unemployment and inequality, parental status should not depend solely on earning capacity.

The courts have recognised that contribution must be assessed contextually rather than mechanically. In KLVC v SDI and Another, the Supreme Court of Appeal reiterated that the question whether an unmarried father has or has not acquired parental responsibility and rights in terms of Section 21 is essentially a factual enquiry dependent on all the relevant circumstances. And that good-faith contribution is an elastic concept and always requires a value judgement.[12]

It is essential because it is a means of ensuring that Section 21 does not become a test of wealth as to fatherhood.[13] A genuine effort to contribute, be of care, contact, emotional investment, practical support or maintenance within the father’s means, needs to be tested against the actuality of the family situation. Where the mother or maternal family reject reasonable efforts at participation, such blocking should not become evidence of the father’s non-compliance.

• Equality and Paramountcy

From an equality perspective, Section 21 raises questions because unmarried fathers must prove circumstances that biological mothers ordinarily need not prove under Section 19. The issue is not that differentiation is automatically unconstitutional but whether the conditions are applied in a way that unfairly burdens fathers based on gender, marital status and finances.[14]

A rigid interpretation can also lead to child-centred harm. If recognition of the paternal role is postponed until litigation is over, the child may be subject to uncertainty, reduced contact and avoidable parental conflict even when the father has made real efforts to be involved.[15]

The distinction between married and unmarried fathers also runs the risk of treating marriage as a proxy for responsibility. That proposition should be approached with caution, because the best interest enquiry should be focused on the child’s welfare and the parent’s actual behaviour, not marital status per se.[16]

• Maternal Gatekeeping and the Frustration of Rights

A central practical difficulty is maternal gatekeeping.[17]  Because the mother usually exercises parental responsibilities and rights from birth under Section 19, she may control the father’s early access to the child and the evidence available to prove his involvement. Section 21 therefore becomes vulnerable to misuse where a mother blocks contact or refuses support and later relies on the father’s limited involvement as proof that he failed to satisfy the statutory requirements.

In cases where a mother or her family unreasonably rejects offers of contact or support, a court should not be too ready to assume that the resultant lack of contact or support proves indifference on the part of the father. It is better to ask whether the father did genuinely all that was reasonable and proven in the circumstances.[18]

Moreover, Section 21 should be properly understood. There needs to be a differentiation between acquisition of rights and later exercise of rights. If a father has made real and provable efforts to accept responsibility, the mother’s resistance should not negate acquisition; it may merely explain the lack of extent of a father’s practical involvement. This needs to be much more explicitly stated in the Act and consistently applied in lower courts to avoid avoidable delay in the child’s relationship with the father.

4. Case Law

• KLVC v SDI and Another SCA:[19]

In KLVC v SDI and Another, the dispute concerned whether an unmarried father had acquired parental responsibilities and rights before the child was removed from South Africa. The mother challenged the father’s status, while the father relied on his acknowledgement of paternity and his efforts to contribute to the child’s upbringing and maintenance.[20]

The Supreme Court of Appeal dismissed the mother’s appeal and clarified two principles that are important for Section 21 disputes:

1. Factual enquiry: Whether an unmarried father has acquired parental responsibilities and rights under Section 21 depends on the facts of the case; the court does not exercise a free discretion to award rights if the statutory requirements have not been met.
2. God-faith contribution: Contribution or attempted contribution must be interpreted flexibly, considering what was reasonable in the circumstances and whether the father’s conduct showed genuine commitment to the child.

4.2 K.O v M.S (2014-021334) [2025] ZAGPPHC 192 (24 February 2025):

In K.O v M.S, the Gauteng Division of the High Court, Pretoria dealt with a dispute between parents concerning the care, contact and exercise of parental responsibilities and rights in respect of a minor child. The real question was not which parent wanted what, but what was best for the child in terms of his welfare, stability and ongoing meaningful relationship with both parents.

The court took a child-centred approach to the issue. It reiterated that the welfare of the child is of paramount importance and that a parent’s behaviour must be judged in the context of whether it furthers or impairs the child’s emotional stability, development and relationship with the other parent. The case is therefore good authority for the proposition that parental conflict should not override the child’s right to proper care and contact.

5. Analysis and Application

• Applying the Law to Socioeconomic Realities

The application of Section 21 shows that progressive statutory language can still produce uneven outcomes. While this section does not require unmarried fathers to first apply to court to gain parental responsibilities and rights, the evidential burden of proving contribution could still adversely affect fathers without money, records, or the mother’s cooperation.[21]

In a situation where early contact is mother-controlled, the father may be placed in a position where it is difficult to provide evidence of contact if it is wished to be exercised. For this reason, a court should consider the overall factual matrix including whether offers of maintenance, contact or caregiving were refused or made difficult to exercise.[22]

• Statutory Reform

A reform-focused response is justified because case-by-case litigation may be slow, expensive and uncertain for parents and children. Litigation could be reduced if legislation clarified that good-faith attempts should be evaluated according to reasonable expectations and that unemployment and obstructive behaviour should not per se bar recognition as a parent.[23]

Therefore, the law should be reformed to jettison the conditional model that tends to treat unmarried fathers as legal strangers until they prove their worth as parents. A stronger reform option would be to amend the Children’s Act to provide for clearer presumptive recognition of biological fathers who acknowledge paternity and who are willing to accept responsibility, while retaining the court’s authority to limit, suspend or terminate rights where this is necessary for the child’s best interests.

Under this model, then, the issues of parentage would not turn primarily on litigation or financial evidence. Disputes regarding abuse, neglect, absence or unfitness would be dealt with within the present best interests’ framework and by appropriate court orders.

6. Conclusion

The Children’s Act was a notable development in South African Family Law. The child-centred system of parental responsibilities and rights replaced the patriarchal common-law concepts of guardianship, custody and access. However, Section 21 is difficult in practice because it makes recognition of unmarried fathers dependent on proof of contribution and involvement, which poverty, conflict and paternal obstruction can easily distort.[24]

Thus, precedent suggests that the courts can alleviate this problem by reading good-faith contribution generously and context-dependently. Such an interpretation stance is vital because a father’s economic situation should not be treated as a comprehensive metric of his ability to play his role, and antagonism on the mother’s part should not be transformed into proof of parental unconcern.

Furthermore, Section 21 must be reformed to function equally, consistently with dignity and in the best interests of the child.[25] The Act must be amended to make clear the legal effect of a good faith attempt to contribute and to adopt a rebuttable model of parental recognition which would protect all parties involved.

Bibliography

Legislation

Children’s Act 38 of 2005

The Constitution of the Republic of South Africa Act 108 of 1996

Guardianship Act 192 of 1993

Matrimonial Affairs Act 37 of 1953

Cases

KLVC v SDI and Another [2014] ZASCA 222; [2015] 1 All SA 532 (SCA)

K.O v M.S (2024-02334) [2025] ZAGPPHC 92 (24 February 2025)

K v M (57613/2014) [2015] ZAGPPHC 335

Secondary Sources

Anne Louw, ‘Revisiting the Limping Parental Condition of Unmarried Fathers’ (2016) 49 De Jure 216

Carmel R Matthias, ‘Parental Responsibilities and Rights of Unmarried Fathers: Court Decisions and Implications for Social Workers’ (2017) 53 Social Work/Maatskaplike Werk 96

Vuyokazi Manana, ‘A Critical Review of Unmarried Fathers’ Parental Rights and Responsibilities in South Africa’ (LLM dissertation, University of Johannesburg 2025)

[1] Children’s Act 38 of 2005 s 18.

[2] Children’s Act 38 of 2005 s 21.

[3] The Constitution of the Republic of South Africa Act 108 of 1996.

[4] The Constitution of South Africa, 1996 s 9, 10 and 28(2); Children’s Act 38 of 2005 s 18-21.

[5] Anne Louw, ‘Revisiting the Limping Parental Condition of Unmarried Fathers’ (2016) 49 De Jure 216; Tholaine Matadi Fongo, ‘Parental Responsibilities and Rights of Unmarried Fathers under the South African Children’s Act 38 of 2005: A Critical Analysis of Selected Recent Case Law’ (LLM dissertation, University of KwaZulu-Natal 2011).

[6] Anne Louw, ‘Revisiting the Limping Parental Condition of Unmarried Fathers’ (2016) 49 De Jure 216; Aletta Elsabe Beyl, ‘A Critical Analysis of Section 21 of the Children’s Act 38 of 2005 with Specific Reference to the Parental Responsibilities and Rights of Unmarried Fathers (LLM dissertation, University of Pretoria 2013).

[7] Matrimonial Affairs Act 37 of 1953; Guardianship Act 192 of 1993; Children’s Act 38 of 2005.

[8] The Constitution of South Africa, 1996 s 9, 10 and 28(2).

[9] The Constitution of South Africa, 1996 s 39(1)(b).

[10] Children’s Act 38 of 2005 s 19 and 21.

[11] Children’s Act 38 of 2005 s 21(1)(b).

[12] KLVC v SDI and Another [2015] ZASCA 42.

[13] Children’s Act 38 of 2005.

[14] The Constitution of South Africa, 1996 s 9; Children’s Act 38 of 2005 s 19 and s 21.

[15] [15] Carmel R Matthias, ‘Parental Responsibilities and Rights of Unmarried Fathers: Court Decisions and Implications for Social Workers’ (2017) 53.

[16] The Constitution of South Africa, 1996 s 28(2); Children’s Act 38 of 2005 s 7 and s 21.

[17] K v M (57613/2014) [2015] ZAGPPHC 335 (24 April 2015).

[18] KLVC v SDI and Another [2014] ZASCA 222.

[19] KLVC v SDI and Another [2014] ZASCA 42.

[20] KLVC v SDI and Another [2014] ZASCA 222; [2015] 1 All SA 532 (SCA).

[21] Children’s Act 38 of 2005 s 21; Anne Louw, ‘Revisiting the Limping Parental Condition of Unmarried Fathers’ (2016) 49 De Jure 216.

[22] KLVC v SDI and Another [2014] ZASCA 222.

[23] Anne Louw, ‘Revisiting the Limping Parental Condition of Unmarried Fathers” (2016) 49 De Jure 216; Vuyokazi Manana, ‘A Critical Review of Unmarried Fathers’, University of Johannesburg 2025.

[24] Children’s Act 38 of 2005.

[25] The Constitution of South Africa, 1996, s 10 and s 28.