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Family and Divorce law in South Africa - A Comprehensive Guide
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GRANDPARENTS RIGHTS

The Rights of Grandparents over Grandchildren

South African law does not make specific provision for grandparents’ rights over their grandchildren. Section 23 of the Children’s Act 38 of 2005 allows any person having an interest in the care, well-being or development of a child to apply to an appropriate court for rights of contact and care, subject to the best interests of the child.

Section 24 deals with the assignment of guardianship. Before the Children's Act came into operation grandparents had no inherent rights or responsibilities. It was only a high court, as the upper guardian of a child, that could bestow access, custody or guardianship on a grandparent. And of course that too would be done only if it were in the best interests of a child – an assessment that would have been made having regard to the rights of the biological parents does however provide for third parties who have an interest in the care, well-being, or development of a child to apply either to the High Court or to the Children’s Court for an Order for Care, Contact or Guardianship over minor children.

A grandparent desiring to establish particular rights over a grandchild should accordingly need to utilize the provisions provided by Section 23 and 24 of the Children’s Act for this purpose. This is obviously not a route that should be lightly undertaken by grandparents, as a unsuccessful application to court could well result in disgruntled or hostile parents to enlist in destructive behaviour to even more separate the grandparent and/or alienate the children against their grandparents.

When considering an application the Court is required in terms of Section 23 and 24 of the Children’s Act to have regard to the following:
  • The best interests of the minor child/children
  • The relationship between the Applicant (grandparent) and the minor child/children and any other relevant person and the child/children
  • The degree of commitment that the grandparent has shown towards the child/children
  • The extent to which the grandparent has contributed towards the child/children’s financial / maintenance requirements
  • Any other factor which in the opinion of the Court ought to be taken into consideration.
  • In the case of a Guardianship Application, the Grandparent would need to submit reasons to the High Court, being the relevant Court for matters of this nature, as to why the child/children’s existing Guardian (being its parent/parents) are not suitable to hold such guardianship rights.

The Supreme Court of Appeal awarded certain parental rights to grandparents in the case of S v J (695/10) [2010] ZASCA 139; [2011] 2 All SA 299 (SCA) ; 2011 (3) SA 126 (SCA) (19 November 2010).

​The facts were briefly as follows. The child was born on 23 January 2006. Her father, Mr S, was the appellant in this matter. Her mother, Ms R, died two months after the child's birth. She suffered from a congenital heart defect and was operated upon on the same day that the child was born in an attempt to remedy the defect. Regrettably she did not recover. S and R were not married at the time of the child's birth. But they were living together at the time and intended to marry. The first respondent, Mrs J, was the mother of R, and thus the maternal grandmother of the child. She was married to the second respondent, Mr J, but the latter was not R’s father. The parties had been engaged, virtually since the child's birth, in a battle for the custody and guardianship of the child. 

The Court made the following order on appeal:

(a) That the father was the holder of full parental responsibilities and rights in terms of s 18 of the Children’s Act 38 of 2005.

(b) That the child should reside permanently with the father.

(c) The grandparents were granted contact with the child on a regular basis.

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Contact Details

​MAURICE PHILLIPS WISENBERG
20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115
Email: familylaw(@)mpw.co.za​


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Email: familylaw@mpw.co.za
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Legal Notices
  • Home
  • Divorce
    • The Reasons for Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage out of Community of Property, new case
      • Marriage in Community of Property
      • Marriage out of community without accrual >
        • Understanding Post-1984 Marriages
      • Marriage out of community with the inclusion of the accrual
      • Anti-Dissipation Interdicts Divorce
      • Universal Partnerships
      • Antenuptial Contracts
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
      • Postnuptial Contracts
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Divorcing a Narcistic Spouse
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Ingredients of a successful relationship
    • What are the elements of a successful marriage?
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
    • Variation of Maintenance due to loss of employment
    • Contempt of Court Maintenance
  • Children
    • Section 28 of the Children's Act
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
    • The Hague Convention >
      • Child Participation in South African Family Law and the Hague Convention
      • International Child Custody Law South Africa
      • Hague Applications and Domestic Violence
      • Mirror Orders and the Hague Convention
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Unmarried Fathers Rights
    • Parenting Plans >
      • Parenting Plan
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • The Law on Grandparents Rights over Children
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
      • What is the effect of Parental Alienation on children?
    • Living Arrangements
    • What effect does divorce have on children?
    • The Voice of the Child in Divorce
    • Facilitation
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • South Africa GBV Bail Law Changes 2021-2025 Complete Guide
    • Domestic Violence Legislation and Case Law
    • The New Domestic Violence Act 14 of 2021
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Being married to a Narcissist.
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment >
      • Harassment Forms
  • Cohabitation
    • Universal Partnerships in South African Cohabitation
    • Maintenance and Cohabitation
    • Interim Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
  • Formalities for marriage in south africa
    • South Africa's New Marriage Bill: A Step Towards Equality and Inclusion
    • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Register for the Online Family Law Course
  • About the Author
  • Contact
  • Charities