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Parent vs Aunt battle for Custody of Child

Contestation of parental rights between a biological parent and a maternal aunt, and the duty under South African law for courts to put the best interests of the minor child first – Ramabolu v Mathibela (2849/2012) [2013] ZAFSHC 79 (21 May 2013)

When a parent dies

When it comes to a minor child, the courts always look into what is in the best interests of the minor child. If something happens to one of the parents, the other parent would stand first in line when it comes to who is going to have primary care of the child. In certain instances however any other party, if he or she has a case, can take priority over a biological parent if the other biological parent has passed away.

Aunt applies for parental rights

In the case of Ramabolu v Mathibela, the applicant was the maternal aunt of the minor child, Lerato. In this case application was made by the aunt in terms of which she would be granted parental rights and responsibilities in terms of Section 23(1)(b), 24, 28 and 29 of the Children’s Act 38 of 2005, in relation to the minor child. The applicant also sought an order for determination of the parental rights and responsibilities of the respondent, who was the biological father of Lerato.

Mother murdered

On 18 August 2010, Lerato’s mother had been murdered by a hitman. The respondent had been found guilty of hiring the hitman after pleading guilty to this charge. He had been sentenced on 14 December 2011 to a period from three years to life imprisonment. Lerato was born on the 12th of December 2000. Prior to Lerato’s mother’s death, Lerato had lived between her aunt’s house and that of her parents. Subsequent to Lerato’s mother’s death, she had been in the permanent care of the applicant.

Aunt awarded primary care

Lerato’s aunt had looked after Lerato as if she was her own child. She had always been a primary care-giver. By profession, Lerato’s aunt was a teacher at Saaiplaas Primary School, Virginia, South Africa. The court in the end in this matter found that Lerato’s aunt was more than equipped to be granted parental rights and responsibilities and so a court order was issued wherein she was awarded primary care of Lerato. In my opinion this was the correct legal decision by the court.

De bloedige hand erft niet

What is also interesting about this case is that the South African law of succession also comes into play. According to our law of succession, we follow the principle of freedom of testation. This means that anybody can be nominated in a will as heir/heiress. However our law of succession is based on the principles of Roman-Dutch Law. One of the principles of Roman-Dutch Law which is applied in our law of succession is “de bloedige hand erft niet”. This basically means that “the bloody hand may not inherit”. If you are found guilty of murdering somebody, you cannot inherit from that person no matter what is stated in the will of that person.

In our case of Lerato the National Director of Public Prosecutions had also instituted proceedings against the respondent for the forfeiture of a house in which Lerato may share as inheritance from the deceased. The applicant had intervened and opposed the forfeiture to safeguard Lerato’s interest in the house. The respondent had filed opposing papers, but the court found that the order sought by the applicant was in the best interests of Lerato.

In this case the respondent would definitely not have succeeded in inheriting anything from the applicant, as he had been responsible for her death. The court always looks into what is in the best interests of the minor child, particularly when:

Parent vs Aunt battle for Custody of Child

When a parent dies

Aunt applies for parental rights

Mother murdered

Aunt awarded primary care

De bloedige hand erft niet

Family, Estate & notarial legal services

Other divorce-related issues

At the beginning

Psychological issues

Child-related divorce matters

Annexure A

Custody of children upon divorce

Child custody post divorce

Child custody on death of a parent

Adoption of a stepchild

Maintenance for children

Maintenance for spouse

Abduction & kidnapping of children

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Affairs

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Annulment instead of divorce

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