Theme 7 : Sections

Question 1

Section15(3)(a) provides that:

Answer 1

1)(i) Marriages concluded under any tradition, or a
system of religious, personal or family law; 2) (ii) Systems of personal and family law under tradition, or adhered to by persons professing a particular religion

Question 2

Section 6 Divorce Act

Answer 2

A custody order or an order for sole custody.
▪ A guardianship order or an order for sole
guardianship.
▪ An order regarding access.
▪ An order for maintenance

Question 3

Section 3 of the Marriage Act

Answer 3

1) Allows the appointment of religious marriage officers for the purpose of solemnizing marriages according to
religious law

Question 4

Section 18(3) Children’s Act – Co-exercise of Guardianship

Answer 4

➢ Consent of all guardians is required for:
Consent to child’s marriage.
▪ Consent to child’s adoption.
▪ Consent to child’s departure or removal from the
Republic.
▪ Consent to child’s application for a passport.
▪ Consent to the alienation or encumbrance of any
immovable property of the minor

Question 5

Section 31 Children’s Act – Major Decisions Involving Child
➢ Decisions that require consideration of views and wishes
of the child

Answer 5

1) A decision that relates to a matter requiring the consent of all guardians.
2) A decision affecting contact between the child and a co-holder of parental rights and responsibilities.
3) A decision regarding the assignment of guardianship or care to another person after the death of a parent

Question 6

Section 19 of the Children’s Act – Mother

Answer 6

1) Other than in the case of surrogacy, the woman who gave
birth to the child will be regarded as the legal mother of
the child and assume full parental rights and responsibilities.
2) If the mother is a minor and unmarried, she is not competent as a guardian. In such cases the mother’s guardian becomes the guardian until the mother gets
married or reaches the age of majority, whichever occurs first.
3) The mother of the child will have care of and contact to her child, even though she is a minor.
4) The guardian of the mother, will acquire guardianship only if the father of the child does not already have guardianship in respect of the child

Question 7

Sections 20 and 21 of the Children’s Act – Father

Answer 7

1) If married to the birth-giving mother, the husband of the mother will be presumed to be the legal father of the child and assume full parental responsibilities and rights
in respect of the child.

Question 8

Section 22 of Children’s Act

Answer 8

1) Parental responsibilities and rights may by agreement be conferred on the biological father of the child or “any other person having an interest in the care, well-being and development of the child.”

Question 9

Section 24 - Guardianship

Answer 9

1) The assignment of guardianship.
2) Only the High Court can consider an application for Guardianship

Question 10

Section 30- General Guidelines

Answer 10

The Children’s Act expressly allows for more than one person or parent to hold parental rights and responsibilities in respect of the same child.
➢ Should that be the case each of the co-holders may act without the consent of the other co-holder or holders when exercising those rights and responsibilities.

Question 11

Section 40 – Status of Artificially Conceived Children

Answer 11

1) Even if a woman gives birth to a child to whom she is not genetically related because the child was artificially conceived with donor gametes, she will still be regarded as the legal mother of the child.
2) The spouse of the mother will be regarded as the other legal parent of the artificially conceived child, provided
the mother and the spouses had consented to the artificial fertilization