[35]The curator ad litem, who supported the joint adoption by the applicants, argued in this Court that the lacuna in the law regarding the protection of children upon termination of the same-sex partnerships could be cured by invoking some of the provisions meant for the protection of children upon divorce or separation of the child’s parents. In his report, the curator observed that an aggrieved parent could approach a High Court in terms of the provisions of section 5(1) of the Matrimonial Affairs Act 37 of 1953,[1] which allows applications for sole custody and/or guardianship in the event of a termination of the same-sex partnership. I am not persuaded that the Matrimonial Affairs Act can be read so as to achieve this result. It refers to an application by a “parent of a minor whose parents are divorced or are living apart”, and speaks of an order lapsing in circumstances where “the parents become reconciled and live together again as husband and wife”.[2]
[36]There can be no doubt, however, that the aid of the High Courts could always be sought in their capacity as upper guardian of all minor children.[3] Although it clearly would be
- ↑ Section 5(1) of the Matrimonial Affairs Act (as substituted by section 16(a) of the Divorce Act 70 of 1979) states that “Any provincial or local division of the Supreme Court or any judge thereof may, on the application of either parent of a minor whose parents are divorced or are living apart, in regard to the custody or guardianship of, or access to, the minor, make any order which it may deem fit, and may in particular, if in its opinion it would be in the interests of such minor to do so, grant to either parent the sole guardianship (which shall include the power to consent to the marriage of the child) or the sole custody of the minor, and the court may order that, on the predecease of the parent to whom the sole guardianship of the minor is granted, a person other than the surviving parent shall be the guardian of the minor, either jointly with or to the exclusion of the surviving parent.”
- ↑ Sections 5(1) and (2).
- ↑ “As upper guardian of all dependent and minor children this Court has an inalienable right and authority to establish what is in the best interests of children and to make corresponding orders to ensure that such interests are effectively served and safeguarded. No agreement between the parties can encroach on this authority.” Girdwood v Girdwood 1995 (4) SA 698 (C) at 708J – 709A. The status of the High Courts as upper guardians of all minors has a long and established historical pedigree. See the discussion in Van Heerden et al Boberg’s Law of Persons and the Family 2nd ed (Juta, Kenwyn 1999) at 500–1, n 7.
