Source: Review of South African Law, Juta's/Annual Survey of South African Law/2015/The law of persons and family law URL: http://jutastat.juta.co.za/nxt/gateway.dll/jrsa/1573/1611/1623?f=templates$fn=default.htm The law of persons and family law 2015 Annual Survey 393 Jacqueline Heaton * Legislation The law of persons No applicable legislation or draft legislation was promulgated during the period under review. Case law Domicile In Central Authority v TK 2015 (5) SA 408 (GJ), Spilg J raised issues relating to the domicile of a child in the context of an application for the child's return under the Hague Convention on the Civil Aspects of International Child Abduction. This case is discussed in the chapter on Conflict of Laws. Suffice to mention for present purposes, that domicile is not the appropriate criterion in the context of the Hague Convention — habitual residence is. To make matters worse, Spilg J appears to have been unaware of the enactment of the Domicile Act 3 of 1992 ('the Domicile Act'). He incorrectly stated that a wife and a minor child obtain domiciles of dependence. This entails that a wife follows her husband's domicile and a minor follows his or her father's domicile. A person of at least eighteen years of age, and someone who is younger than eighteen years, but legally has the status of a major, can acquire a domicile of choice, regardless of his or her sex or marital status, unless he or she lacks the mental capacity to make a rational choice (s 1(1) of the Domicile Act). Therefore, a wife obtains a domicile of choice independently of her husband. The domicile of a minor is regulated by section 2 of the Domicile Act, which provides that a minor is domiciled at the place with which he or she is most closely connected. 2015 Annual Survey 394 Parental responsibilities and rights of unmarried parents Acquisition of parental responsibilities and rights KLVC v SDI & another [2015] 1 All SA 532 (SCA) is an unsuccessful appeal against the decision of the High Court in I v C & another (KZD) 4 April 2014 (case 11137/2013). The decision of the High Court was discussed in 2014 Annual Survey 836–7. There it was mentioned that the decision was confirmed on appeal. To elucidate: on appeal, the Supreme Court of Appeal confirmed that the unmarried father had acquired parental responsibilities and rights in terms of the Children's Act 38 of 2005 ('the Children's Act'), as the requirements in section 21(1)(b) of the Children's Act had been met. That section provides that an unmarried biological father has full parental responsibilities and rights in respect of his child if he, regardless of whether he has lived or is living with the mother — (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child's father or pays damages in terms of customary law; (ii) contributes or has attempted in good faith to contribute to the child's upbringing for a reasonable period; and (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. The question of whether the requirements in (i)–(iii) are cumulative, or distinct and independent, has not yet been settled. In RRS v DAL (22994/2010) [2010] ZAWCHC 618 (10 December 2010), it was held that all three of the requirements must be satisfied. This is in keeping with the view of several authors (see Anna Sophia Louw Acquisition of Parental Responsibilities and Rights (unpublished LLD thesis, University of Pretoria 2009) 123–4; Lawrence Schäfer Child Law in South Africa. Domestic and International Perspectives (2011) 241; Ann Skelton & Marita Carnelley (eds) Family Law in South Africa (2010) 247; Jacqueline Heaton 'Parental responsibilities and rights' in CJ Davel & AM Skelton (eds) Commentary on the Children's Act (2007) 3–13; Anne Skelton 'Parental responsibilities and rights' in Trynie Boezaart (ed) Child Law in South Africa (2009) 76). However, in the court a quo (I v C & another above), concern was raised about the interpretation that renders the three requirements cumulative, among other things, because it excludes 'the penniless unmarried father who nevertheless cares for his child's 2015 Annual Survey 395 upbringing and contributes or makes good faith attempts to contribute to the child's upbringing' (para [30]). The court did not find it necessary to decide the issue of the correct interpretation of the word 'and' in section 21(1)(b). It was held that the father had in any event complied with all three requirements. Likewise, the Supreme Court of Appeal found it unnecessary to decide the issue, as it confirmed the finding of the court a quo in this regard (paras [14], [16], [28], [34]). In respect of the approach that must be adopted when deciding whether section 21(1)(b) has been satisfied, the Supreme Court of Appeal also confirmed the view of the court a quo that a purely factual enquiry is at issue (paras [13] [14]). It held that, even though the court must exercise a value judgment in respect of the matters mentioned in section 21(1)(b)(ii) and (iii), this does not mean that judicial discretion is involved, because an 'unmarried father either acquires parental rights or responsibilities or he does not' (paras [14] [15]; the quoted portion appears in para [14]). The Supreme Court of Appeal held that the facts of each case, including the age of the child and the circumstances of the parties, are relevant considerations in evaluating the reasonableness of the period during which the father contributed to the child's upbringing and expenses in connection with the child's maintenance. Moreover, it was held that 'whatever the unmarried father contributes must be of an on­ going nature' (para [21]). The Supreme Court of Appeal also agreed with the court a quo that '[c]ontribut[ing]' or 'attempt[ing] in good faith to contribute' for 'a reasonable period' are elastic concepts and permit a range of considerations culminating in a value judgment as to whether what was done could be said to be a contribution or a good faith attempt at contributing to the child's upbringing over a period which, in the circumstances, is reasonable (para [22], quoting a portion of para [35] of the judgment of the court a quo). The Supreme Court of Appeal added that the maintenance contribution envisaged in section 21(1)(b)(iii) is not the same as the maintenance that the father must provide in terms of the Maintenance Act 99 of 1998 (para [29]). Therefore, any contribution to the child's maintenance can be considered. Although the Supreme Court of Appeal avoided what was possibly the most important issue with regard to section 21(1)(b) — ie whether the requirements listed in the section are cumulative 2015 Annual Survey 396 — its decision is, nevertheless, helpful. It provides useful guidance on the approach that must be adopted when determining whether the section has been complied with. It also clarifies what constitutes 'a reasonable period of time' for purposes of section 21(1)(b)(ii) and (iii) (see also Jacqueline Heaton & Hanneretha Kruger Casebook on South African Family Law (2015) 414). Termination of parental responsibilities and rights © 2018 Juta and Company (Pty) Ltd.In GM v KI 2015 (3) SA 62 (GJ), an unmarried mother sought termination of all the parental rights of the father of her child subject to retentionDownloaded : Tue May 14 2019 14:07:24 GMT+0200 (South Africa Standard Time) of the father's parental responsibilities. The court held that parental responsibilities and rights are opposite sides of a coin and that for the most part they exist concomitantly (para [9]). The court suspended the father's parental responsibilities and rights until an application for maintenance is made by or on behalf of the child. It further appointed the mother sole guardian of the child for the duration of the suspension of the father's parental responsibilities and rights. The decision is discussed below. Proof of paternity BR & another v TM; In re: LR [2015] 4 All SA 280 (GJ) concerns a dispute regarding paternity and parental responsibilities and rights pending determination of a divorce action. The second applicant (SR) gave birth to a child (LR) while she was married to the respondent (TM). Three years after LR's birth, the relationship between SR and TM ended. SR moved in with the first applicant (BR), taking LR with her. For seven years before the present application, BR maintained LR, paid her school fees, retained her on his medical aid and attended her school activities, and was LR's father figure. BR and SR married each other a few years after SR separated from TM. They were unaware that their marriage was invalid because the marriage between TM and SR had never been dissolved by divorce. TM also remarried. It seems that, around the time that TM entered into his second marriage, he was advised that he had to divorce SR in order to conclude a valid marriage with his second wife. He instituted divorce proceedings against SR. He also sought an order declaring that he and SR retained full parental responsibilities and rights in respect of LR, and that they shared residency of and contact with LR. TM further launched an application in terms of rule 43 of the High Court Rules, seeking interim contact with LR. In the interim contact 2015 Annual Survey 397 application, SR counterclaimed for maintenance for LR.