Guardianship

Directly translated, guardianship refers to the position of being legally responsible for the care of someone who is unable to manage their own affairs.

Parents are usually considered ‘joint’ guardians and referred to as the ‘natural guardians’. This means that they have no choice whether to be a guardian or not and the duties of supporting their children are imposed by law. In the case of a court appointed guardian, they can choose whether they wish to accept the office of guardian. As a result, the duties imposed on a natural guardian and an appointed guardian differ in some ways.

In alignment with the Children’s Act, the role and responsibilities of a natural guardian are;

• To administer and safeguard the child’s property and interests; any property that the child might have inherited remains theirs, but will be under the control of the guardian until they are no longer a minor. As a natural guardian, it is their duty, if the children have more money than is required for their maintenance or education, to invest the money in ‘prudent yet profitable’ securities.A guardian appointed by the court or nominated in the natural guardian’s will is obliged to pay the minor children’s surplus money to a fund called the guardian’s fund, which has been created by statute and is administered by the various masters of the Supreme Court. However, such a guardian may, in certain circumstances, be relieved of this duty and be able to use the funds for more profitable investments.

  No guardian, whether natural or appointed, can sell or mortgage any of the minor children’s immovable property unless given permission by the Supreme Court or if the property is worth less than R10 000.

• Assist and/or represent the child in administrative, contractual and other legal matters; A guardian must authorise any contract entered into by a minor, either expressly or by implication in order for the contract to be deemed legitimate.
• Hold the power of ‘consent’ required by law in respect of the child. The consent of every guardian is required in respect to: the marriage of the minor child, adoption of the minor child, the removal of the child from the republic by a parent or by any other person, the application for a passport by or on behalf of any child under the age of eighteen and the alienation or encumbrance of any immovable property of the child.

The term ‘guardianship’ is emotively weighted and often raises issues in the struggle for power between spouses in a divorce battle. The Children’s Act, which has revoked the Guardianship Act (No 192 of 1993), serves to regulate the balance of power between joint guardians and ensure the wellbeing and security of the minor.

Being a responsible guardian means seeing to and guaranteeing the safety of the minor, such as living in a safe house, providing necessary medical care, living within an honest and fair environment and receiving human rights, such as making their own decision and having the freedom of choice.