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From this court case it appears that our law is moving towards a position where
there will in the near future be a full recognition of Muslim marriages and
that the consequences and termination of such a marriage will be regulated
similarly to those marriages which are currently legally recognised.
*Since publication of this article, Government has taken a decision to appeal
the judgment.

Grandparents have rights too!

June 2018

“I practically raised my grandchildren for the first few years of their lives and
am very close to them. Unfortunately, my son recently passed away and now
their mother refuses that I see them. Is there anything I can do?”

As a point of departure, it is important to note that our South African law as
a rule does not make specific provision for a grandparent’s rights over their
grandchildren. That said, our Children’s Act 38 of 2005 does provide for a way to
establish such rights. In terms of the Children’s Act any third party who has an
interest in the care, well-being, or development of a child may apply to either
the High Court or the Children’s Court for an order for care or contact over minor
children. Thus, a grandparent who wishes to establish rights over grandchildren
would need to make use of section 23 of the Children’s Act.
When considering bringing such an application to court it is important to note
the difference between and order for care and one for contact. “Care” as defined
in Section 1 of the Children’s Act includes providing the child with a suitable
place to live, proper living conditions, financial support and protecting the child
from abuse and harm. It also deals with guarding against any infringement of
the child’s rights, directing the child’s education and ensuring the best interest
of the child are the paramount concern in all matters affecting the child.
“Contact” on the other hand, in relation to a child, means to maintain a personal
relationship with the child. If the child lives with someone else contact would
entail communication with the child on a regular basis either in person or by
telephone.
In an application for either care or contact the court will consider the best
interest of the child, the relationship between the applicant and the child and
Family the degree of commitment that the applicant has shown towards the child.
Furthermore, in determining the best interest of the child the court will have
regard to the need for the child to remain in the care of his or her parents or

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