Guardianship is an adults’ right and responsibility. In terms of the Children’s Act 38 of 2005 a person who acts as a guardian must:

1) Administer and safeguard the child’s property and property interests;

2) Assist or represent the child in administrative, contractual and other legal matters; or

3) Give or refuse any consent required by law in respect of the child, including:

  • consent to the child’s marriage;
  • consent to the child’s adoption;
  • consent to the child’s departure or removal from the Republic;
  • consent to the child’s application for a passport; and
  • consent to a sale of any immovable property of the child.

Guardianship of a child has nothing to do with whom or where a child resides. Guardianship relates only to assisting the child in legal, contractual and administrative matters, including safeguarding their property, as well as giving or refusing consent required by law in respect of a child.

Care and contact is the common law concept of day-to-day control and care of a child. Since the introduction of the Children’s Act 38 of 2005 “care”, which is one of the parental rights and responsibilities, is assigned to a married or unmarried parent.

In South Africa, the duties of a natural guardian are imposed by law and a parent has no choice whether to be guardian or not. On the other hand, guardians appointed by the court, or nominated in a will, can choose whether or not they wish to accept the office of guardian. In certain very specific circumstances, the court may grant sole guardianship to one parent or someone who is not the biological parent. 

The High Court is the upper guardian of all South African children. If a guardian is not fulfilling their duties the High Court can be approached to intervene. A legal guardian of a child should be a fit and proper person, responsible and a trusted friend or family member. Again, a legal guardian may be appointed by way of an application to the High Court. Anyone who has an interest in the care, well-being and development of a child may apply to be the child’s guardian. The court will always consider the best interests of the child, the relationship between the applicant and the child and any other relevant person and the child, and any other factor that should, in the opinion of the court, be taken into account. The appointment of such a legal guardian has no effect on parental rights and responsibilities and would not make the legal guardian financially responsible for the children.

Should you wish to consult one of our Attorneys regarding the assigning of a legal guardian, or you have any questions or queries relating thereto contact our offices. 

For direct answers to your specific personal questions, please contact us directly.

Read more about our child law services.

Author – Kate Bailey – Hill

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