Swemmer & Levin

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There can be no doubt that grandparents, more often than not, are intimately involved in their grandchildren’s lives and upbringing, and they provide care. But what happens when they are denied access to and contact with their grandchildren?

Despite the generally recognised importance of the role grandparents play in the lives of many children, not only as caregivers but also in their traditional role as grandparents, no specific status is attached to being a grandparent in South African law. Regardless of the role they fulfil, grandparents never had any automatic, inherent rights over their grandchildren. However, in terms of the Children’s Act 38 of 2005 (the Act), grandparents have locus standi to approach the Courts to establish such rights. In terms of the Act, any person who has an interest in the care, wellbeing or development of a child, can apply to the High Court or Children’s Court for an order for care, contact or guardianship over the minor child.

When considering such application, the best interests of the child would remain the overriding concern. The court could refer any such application to the family advocate for investigation and recommendation. The assignment of rights to a third party has thus in the past always been seen as an interference with the rights of parents and the court has consequently been reluctant to assign parental responsibility and rights to third parties. South African law is very clear in this regard and the courts do not like to intrude on issues of parental authority and will only do so if it would positively affect the child’s upbringing and wellbeing.

In the judgment of LH V LA 2012 6 SA 41, the paternal grandparents applied for an order in terms of section 23 of the Act to re-establish contact with their grandson after the tragic death of his father, their son. The mother got married a year after their grandchild’s birth. The mother had originally initiated contact between her son and his grandparent. The grandparents thereafter had regular contact with their grandson, who soon started to spend weekends with them.

The arrangement was abruptly ended after their grandson’s third birthday. Despite various attempts by the grandparents to convince the mother to allow them contact with their grandson, they were still denied access by the mother on the basis that contact with grandparents had caused numerous problems in the past and further contact would not be in the best interests of the child.

Having reference to the Act, the court concluded that the Act recognises that a child is a social being and that members of the extended family, more often than not, play an important part in a child’s social and psychological development. The court urged that contact should be encouraged, unless there were compelling reasons to prohibit such contact. Since no reasons could be found, contact was granted to the grandparents.

However, if, upon application, grandparents are granted care and contact rights, the parental rights and responsibility of the natural parents or guardians are not dimished. If grandparents wish to exercise full parental responsibility, they will have to approach High Court on application for guardianship and will need to furnish the High Court, as the upper guardian of all minors, with sufficient reasons as to why the current guardian is not a suitable person to hold such rights.

REFERENCE LIST

  • Children’s Act 38 of 2005
  • LH and Another v LA 2012 (6) SA 41 (ECG)

 

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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Jan Fourie

Director |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. 

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners. He is currently based at Swemmer & Levin’s Vredenburg office and has been with our firm for more than 47 years.

Pieter Smit

Director | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking. 

Johann Maree

Director | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he finally moved to Vredenburg and joined Swemmer & Levin, where he is still practising as a director. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Richard Phillips

Director | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity to join Swemmer & Levin on the West Coast, he agreed without hesitation and has been with our firm since 1997. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Jandré Smith

Director | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director at the firm, where he practises in the Litigation department at our Langebaan office. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Andre van der Walt

Director | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Harmann Potgieter

Attorney | LLB

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with Swemmer & Levin as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

Carla Cloete

Attorney, Conveyancer & Notary | LLB

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the Swemmer & Levin team as a professional assistant.