The Failure of the South African Family Law System in Custody Battles: A Father's Perspective

ABSTRACT

This article examines the experiences of four non-resident fathers in child custody battles in South Africa. These fathers have been in constant legal battles and have concluded that the South African family law system has failed them. The system, according to these fathers, refers to the various laws related to the maintenance court system and the children’s court, as well as the people who implement them, including social workers from the Department of Social Development, court-appointed psychologists, and family lawyers, and all the other organisations tasked with ensuring that the best interests of a child in custody cases are upheld. The interviewed participants maintained this view based on what they perceived as the barriers that the system places before fathers. Participants in this study also believed that in child custody cases, the courts tend to be biased against men, and they lament the slow manner in which the children’s court handles and resolves child custody cases. The narratives of the four participants presented in this article shed light on an important aspect of parental relations in South Africa. The study recommends a coordinated effort by the government, the South African court system and organisations advocating for fathers’ rights to encourage the involvement of non-resident fathers, and commends the recent court judgements in favour of fathers in parental alienation cases. The article emphasises that the systems should promote positive and active father involvement with their children with the same vehemence as financial provision by fathers for mothers and their children.

KEYWORDS:

• child custody
• non-resident fathers
• fatherhood
• fathering
• child custody disputes
• family law system

Introduction

Situations in which a person is judged for no apparent reason apart from the application of wrongful stereotypes or prejudices often occur in South Africa. Such stereotypes are especially difficult to overcome when one is fighting for the most basic rights. This study found that some fathers are now facing this prejudgement in the South African family law system, being labelled “abusive, neglectful and disinterested” parents (Eddy, De Boor, and Mphaka 2013:32), and are losing custody of their children in divorce settlements. Importantly, while South African family law has never officially adopted the “Tender Years Presumption,” which holds that very young children are better off with their mothers (Hartenstein 2016), this article will argue that through the principles of common law and statute, it is the mother who is almost always granted custody and the father denied a relationship with his children. Behind this decision-making process lies the assumption that it is in the best interests of the child to be with the mother and that the father has failed to establish his entitlement to rights of custody and access. Nonetheless, this very assumption was examined by the South African Law Commission between 1999 and 2003, which subsequently recommended a removal of the differential criteria applied by the courts for custody decisions in contested matters. This culminated in several key pieces of legislation in the country.

Today, South Africa is renowned for having some of the world’s most progressive family law legislation, such as the Children’s Act 38 of 2005 and the Maintenance Act 99 of 1998. These laws are enforced by the children’s courts and maintenance courts, both of which are located in magistrates’ courts across the country. The aim of the magistrate’s court is to safeguard children’s interests, take care of children who need care and protection, and make decisions about children who are abandoned, neglected or abused. However, a recent pioneering study has shed some light on the alarming dysfunction within the country’s family law system, indicating that these laws are frequently not implemented as intended (Botha 2024). Botha’s interim report also exposes the systemic issues that are weakening the courts’ effectiveness and legitimacy while inflicting actual harm on children and families. Although not directly explored in this study, the life course concept places a strong emphasis on how intertwined people’s lives are, especially among families. Custody disputes frequently have a disproportionately negative impact on children. In all four of the situations discussed in this article, the mother and father were at odds with one another, with little or no regard for the children’s rights, feelings, interests or points of view. Moreover, in a research study conducted by Lobaka (2017), titled “Exploring the Experiences of Young Adult Women Growing up with Non-resident Fathers,” participants expressed their frustration at becoming caught up in custody disputes that were frequently motivated by malice. These young women also described that they had been affected by the ongoing parental disputes over the course of their lives.

The current study focuses on the narratives of four fathers who have been denied access to their children and have experienced hostility from the various systems dealing with child custody. This article makes the case that the overall system is seriously failing these fathers and needs to be significantly reformed as a result of evidence from these non-resident South African fathers, who were interviewed regarding their interactions with the nation’s legal system and the related bureaucracy that handle child custody and maintenance claims and disputes. Botha’s (2024) extensive study also concluded that there is an urgent need to reform the South African family law system. This view is, moreover, shared by the legal practitioners, social workers and litigants who formed part of her research.

The current article develops its argument by building on the findings of a doctoral study that focused on the role of non-resident fathers in raising their children (Lobaka 2023). During this study a number of participants narrated concerns about their experiences with custody and maintenance disputes and how problematically they found those disputes to have been handled by the courts, social workers and other officials, as well as how problematic the outcomes of the bureaucratic decisions were. The article focuses explicitly on evidence comprising non-resident fathers’ expressions of their concerns about and experiences of how such custody disputes were handled, and the consequences of how they were addressed. The article does this by presenting and analysing narrative data from four of the 23 participants in the doctoral study who were especially informative and insightful during the larger study about those concerns and experiences. As such, the article is organised in such a way as to consider the three inter-related themes that were the most prominent in what those four participants said during the interviews, namely:

1. The bureaucracy’s failures as regards non-resident fathers and their expectations regarding custody and maintenance claims and disputes;

2. Gaps in the bureaucratic system that exacerbated the failure to address non-resident fathers’ concerns and circumstances; and

3. The comparative efficiencies and/or inefficiencies of the children’s court and the magistrate’s (maintenance section) court as regards non-resident fathers’ requirements and expectations of the system, which comprises the courts, the Family Advocate, the social workers who deal with custody disputes and the general bureaucracy involved in child maintenance and custody issues.

Therefore, this is an important study on how non-resident fathers in South Africa understand and negotiate their engagement with the legal entities that oversee child custody and child maintenance. The current study enables readers to hear the voices of fathers whose access to their children is being denied through a variety of bureaucratic and legal failures in child custody and maintenance disputes. I argue that these four participants are a subset of a larger demographic of disgruntled non-resident fathers in South Africa. On a wider scale, this article makes an important contribution to work being done on fatherhood and fathering in South Africa. It also builds on the work of Khunou (2006), who can rightly be regarded as the first South African sociologist to draw attention to the issue of fathers battling to obtain custody of their children.

Children’s Act as amended

It is important to note here that the Children’s Act 38 of 2005 as amended in 2007 was first promulgated in June 2006 after the repealing of the Child Care Act of 1983 (Republic of South Africa [RSA] 2005). This statute is intended to give effect to children’s constitutional rights and, in so doing, it makes certain dramatic shifts in the resolution of disputes concerning children. The primary goal of the act is to ensure the protection of children’s rights in post-apartheid and democratic South Africa. The act aims to guarantee that the best interests of the child principle is given priority. Key to this article are sections 20 and 21 of the act, which outline the parental rights of married and unmarried fathers, and section 26 which outlines the process a father should take to establish paternity of a child (RSA 2005). The Children’s Act is an important document for legislative reform because it allows unmarried fathers an inherent right of access to their children which they did not previously have (Beyl 2013). According to section 20, two components qualify a father to have full parental responsibilities and rights. These are, first, if the biological father is married to the child’s mother; and, second, if he was married to the mother at the time of the child’s conception or birth or between the child’s conception and birth (RSA 2005, 41). Matthias (2017) terms these components under section 20 automatic parental responsibilities and rights.

Section 21 of the act outlines criteria for unmarried biological fathers who do not meet the criteria as set out in section 20. To acquire full parental rights, a father must have been living with the mother in a life partnership at the time of the child’s birth (s 21(1)(a)) (RSA (Republic of South Africa). 2015. Children's Second Amendment Bill. Pretoria: Republic of South Africa). Otherwise, if the couple were not co-residing at the time of the child’s birth, the father needs to satisfy certain requirements to acquire full parental rights. Firstly, the father needs to consent to be identified as a father, either by adding his name to the child’s birth certificate or by taking a paternity test ordered by the court (section 26) or by paying inhlawulo¹ in terms of customary law. Secondly, the father must be willing to contribute to the child’s upbringing and daily expenses.

There has been significant progress in encouraging fathers’ involvement beyond residence since this new Children’s Act was introduced. Nonetheless, there is still a belief in South Africa that fathers find it challenging to maintain a positive relationship with their children because of the family court system (Botha 2024; Khunou 2006; 2012). A study on fathers’ experiences of denied contact with their children after a break-up found that despite the amendment to the Children’s Act, fathers are often still denied access to their children (Matjila 2019). Khunou (2006), in her study “Fathers Don’t Stand a Chance,” also found that all 10 of the respondents of this study had attempted to gain access to their children, in some cases even through litigation. However, almost all her participants did not have access to their children, partly because of the failure of the courts to recognise the need and importance of active father involvement.

Fathers and the judicial system

The maintenance system in South Africa has two facets: firstly, the Child Support Grant (CSG), which is given by the state to all children who meet the requirements after the primary caregiver’s means is tested; and, secondly, the judicial maintenance system, which is enforced through the maintenance court. However, it is important to note that in South Africa, every magistrate’s court is a maintenance court. As such, these courts are designed to also adjudicate cases that pertain to child maintenance. According to Khunou (2018), the judicial maintenance system, as defined by the Maintenance Act of 1998, aims to hold parents accountable and is founded on the legal duty to pay for one’s dependents. The fundamental legal tenet is that both parents are responsible for providing for their child’s financial needs in accordance with their means (Gallinetti 2006). However, this is often ignored by the maintenance courts, which usually place the onus on a father’s ability to provide. Khunou (2018) continues by indicating that because access and custody issues are crucial factors in encouraging father engagement, the system falls short in adequately protecting the rights of some fathers. Moreover, the way social policy around families has developed has been influenced by a certain understanding of the father’s role as provider (Khunou 2006). Maintenance courts also seem to focus exclusively on financial provision and ignore the father’s need to be actively involved (Ratele and Nduna 2018). Eddy, De Boor, and Mphaka (2013) also found that some fathers in their study challenged the implementation of the child maintenance system as being one-dimensional because it does not go beyond the enforcement of monetary payments, hence the seeming emphasis on fathers’ material and financial contributions rather than father custody and father parenting issues. Various studies in South Africa have found that fathers tended to value a positive father–child relationship and did not have a problem with paying maintenance (Khunou 2006; Lobaka 2022). However, these fathers believed it was unacceptable to pay maintenance while being denied access to their children. Fathers further complained about being denied custody of their children following relationship dissolution, and their pleas to the children’s court appear to be ignored (Commission for Gender Equality 2021). As such, there also seems to be blatant disregard and/or stereotypes of the role non-resident fathers often play in the upbringing of their children (Commission for Gender Equality 2021; Malinga 2021). It is for this reason that Malinga (2021) recommends that maintenance courts need to consider fathers’ involvement in parenting in addition to financial provision.

Maintenance defaulting

The South African judicial system has been heavily criticised over the last 20 years for, among other things, its neglect in tracking and tracing absent fathers who do not pay regular maintenance, leading poor women to resort to the public grant system for support (Coutts 2014).

It needs to be recognised that there is ample evidence to show that there is an exceedingly high rate of maintenance defaulters in South Africa (Commission for Gender Equality 2021; Eddy, De Boor, and Mphaka 2013; G’sell 2016). Zondi and Angela confirm that the maintenance system is characterised by default; late or incomplete payment; non-payment; refusal to pay; and concealing financial statements to deliberately avoid supporting the children (Carnelley 2022). This suggests that the maintenance system is in crisis owing to the overwhelming irresponsibility of biological parents in terms of maintaining their children.

The definition of defaulting is failure to fulfil a court-ordered maintenance payment. This is a simple concept, but when attempting to measure default there may be many factors to consider. Importantly, beyond educational and demographic characteristics, the research points to the need to distinguish between those who are genuinely unable to pay and those who intentionally evade paying maintenance. This distinction is vital in calculating the proportions of defaulters and in identifying at-risk groups that may need intervention. Research shows that many fathers do deliberately withhold maintenance payments despite their ability to make payments (Human 2018). Eddy, De Boor, and Mphaka (2013) argue these fathers often resort to withholding maintenance payments as a retaliatory measure. This means that a father will deliberately stop paying maintenance as a way of retaliating against the mother for denying him access to the child, or punishing the mother for the break-up or even for re-partnering (Human 2018). While this response is inexcusable, it points to deeper systemic issues such as patriarchy and gender equality. Considering this, Ratele (2021) argues that there is a need for a thorough understanding of how fathers use money as an instrument of violence and manipulation to coerce and perpetuate abuse of the mother and the children. This is particularly important since maintenance defaulting affects mothers and children who need the financial resource (Khunou 2018).

In response to the high number of maintenance defaulters and the criticism of the judicial system in dealing with maintenance cases, in September 2015 the South African parliament approved the Maintenance Amendment Act of 2015 (Proudlock and Rohrs 2018). This act is punitive in nature, granting, among other things, the maintenance court the right to submit details of maintenance defaulters to credit bureaus for blacklisting, and granting maintenance officers permission to subpoena cell phone records of the defaulters for the purposes of locating their whereabouts.

Research methods

The data for this article were gathered as part of a doctoral dissertation titled “Paternal Involvement beyond Residence: The Role of Non-resident Fathers in Raising Their Children in Tshwane Metro, Gauteng.” That study traces the roles of non-resident fathers in providing for their biological children over the life course.

For the study, a sample of 23 Black African fathers between the ages of 24 and 62 residing in Gauteng was drawn using purposive and snowball sampling. The research was conducted in Tshwane District Municipality in Gauteng province. The participants of the study resided in six townships in the municipality, namely Atteridgeville, Lotus Gardens, Hammanskraal, Mamelodi, Soshanguve and Silverton. The four participants identified in the present study were drawn from the pool of 23 non-resident fathers who participated in the larger study. The decision to explicitly focus this article on the narratives of these four fathers was based on the fact that while all 23 participants were denied access to their biological children, only these four participants had sought legal recourse and/or expressed concerns about their experiences with the South African judicial system that handles child-custody and child-maintenance cases. Therefore, this article directly and exclusively focuses on non-resident fathers’ narratives about their experiences with South Africa’s legal system and the related bureaucracy responsible for child-custody and child-maintenance claims and disputes. It thus focuses on how this legal and bureaucratic system is failing them and pays very limited attention to broader issues relating to non-resident fatherhood practices in South Africa and how those are constrained in their fatherhood and parenting.

The four narratives were thus chosen from the main study based on the similarities and/or differences in the theme of systematic challenges. In-depth interviews were used as a primary data collection method to explore the role non-resident fathers play in raising their biological children, and, as part of these interviews, the challenges and/or frustrations fathers experience in child custody cases also surfaced. Interviews were conducted between September 2020 and March 2021, and lasted between 45 and 60 min each. All interviews were conducted in English, with the occasional use of the home language (which ranged from isiZulu to isiXhosa and Setswana). However, being multilingual I was able to probe even when the home language was used. To ensure that accuracy and trustworthiness were achieved, all interviews were audiotaped with the consent of the participants and subsequently transcribed verbatim. To enhance the quality of the data collected, my field notes were also incorporated into the transcriptions. These in-depth interviews were a useful data-gathering technique, allowing me to gain a deeper understanding of the nature and significance of the participants’ daily experiences (Palmer and Bolderston 2006, 17).

In terms of ethical considerations, permission to conduct this study was granted by the University of South Africa, College of Human Sciences. Participants signed an informed consent form prior to participating in this study. The participants were recruited with the assistance of fathers’ advocacy rights groups and the Department of Social Development (DSD). Participants were advised that they were free to decline participation and/or could withdraw from the study at any time without fear of repercussions—this was necessary because some participants were recruited from organisations with the help of an authority figure. Personal information was removed from the transcripts and names were changed to pseudonyms provided by the participants themselves in order to safeguard their identities.

Data analysis

The six steps of thematic analysis proposed by Lester, Cho, and Lochmiller (2020) were used in analysing the data. All interviews were audio recorded and translated into English where necessary. These recordings of the in-depth interviews were later transcribed and the transcriptions were coded, with special attention being paid to accuracy and clarity through intercoder reliability, which “is a numerical measure of the agreement between different coders regarding how the same data should be coded” (O’Connor and Joffe 2020). The intercoder reliability process was important because three translators were involved in the data transcription process. The coded transcriptions were read as part of narrative analysis, in the process moving from codes to categories and from categories to themes and sub-themes. Direct quotes from the transcripts are utilised to illustrate the findings and support the theme interpretations.

Findings

The study explored what fatherhood meant to each of the participants and how they would most like to father. Studies in South Africa have found that fatherhood means different things to different men; these meanings include, among others, a biological tie, obligation to provide financial support, time spent caregiving, co-residence, custody/visitation and emotional intimacy (Ratele, Shefer and Clowes, 2012). The four interlocutors already exercised some of these forms of fathering, but they were seeking access to other forms. For example, Mike is a 40-year-old father of four children from three different mothers. His eldest son (20) was from a previous relationship, another child (12) was from a subsequent relationship and two children (10 and 1) were from his current marriage. Mike had full access to three of his four children but had been denied access to his second child. Despite Mike being denied access, the mother continued to seek financial support from him. Mike indicated that he had been taken to the maintenance court on several occasions either because he missed a month of maintenance payment or because the mother demanded an increase in the monthly payment. Mike thus played a role in one form of fathering, which is being an economic provider for his children, but he sought access to another form – that is, time spent in caregiving. To force access to the other form of fathering Mike at times therefore intentionally neglected his role as an economic provider to his second child. For instance, he stopped paying maintenance as a way to expedite the court’s inquiry into his denied access case. Interestingly, the four participants did not consider and/or define a responsible father primarily by his ability to pay maintenance. The participants’ main concerns were the lack of time spent in caregiving, denied visitation rights and lack of emotional intimacy with their children.

Another issue, to be considered below, derives from the fact that some research suggests that fathers’ experiences of being fathered are an important influencing factor for how men become fathers themselves. The participants used their relationships with their biological fathers as yardsticks to measure their own fathering. As such, they used modelling or a compensatory approach (Bar-On and Scharf 2014, 650). Through a modelling approach, the participants modelled and replicated positive traits they had learnt from their fathers. In contrast, through a compensatory approach the men made sustained and deliberate efforts to avoid repeating the mistakes of their fathers.

In summary, in the subsections that follow I present three inter-related themes pertaining to the South African family law system as they emerged from the narratives of the participants: the perceived failures of the family law system regarding non-resident fathers; specifics about gaps in the system that result in failure for fathers; and comparing the respective failures of the maintenance section of the children’s courts and magistrates’ courts as regards how it affects non-resident fathers.

The failure of the system

Some participants in this study regarded the judiciary and its allied organisations as the main reason fathers are denied access to their children. These participants reported lengthy battles with the maintenance court, the DSD, and other organisations. The following four examples, drawn from each of the four interviews, illustrate this point.

Khumo, a 28-year-old father of two children from two different mothers, had no access to his first child (4 years old) and limited access to his second child (2). When asked about the whereabouts of his children, he stated that his first-born child was in KwaZulu-Natal and his second-born in Atteridgeville, Pretoria. He articulated that the last time he had been in contact with his first child was in December 2019. He explained that he had bumped into the child on the street when they were visiting family close to where he lived. Although the mother knew that Khumo lived close to where she was visiting, she did not inform him that she was in Gauteng, nor did she allow the child to visit the paternal side of his family. In relation to the second child, Khumo mentioned that he has some access, but this was dependent on his ability to meet what he viewed as the unreasonable financial demands made by the mother and sometimes her family. Khumo had approached the South African court system with both of his ex-lovers in an attempt to gain access to his children. In his view, the system failed to protect his rights on both occasions. This is particularly worrying given that Khumo conducted a paternity test for his second child, in line with section 26 of the Children’s Act. He narrated his experiences in dealing with the children’s court and the maintenance system as follows:

I approached the Children’s Court in Pretoria to request access to my firstborn child; I was living in Tsakane at the time. My ex-girlfriend and I both stated our cases to the presiding officer. The officer took the decision that I should collect the child at her mother’s residence Saturday morning, return him in the evening, collect him again Sunday morning, and return him in the evening. This is after I stated that I live in Tsakane which is 108 kilometres away; I explained that it would take me at least four hours on public transport to and from Pretoria, when do I get a chance to spend time with my son? And all the presiding officer said was the child was too young and cannot sleep over at my residence. (Khumo, September 2019)

Accordingly, it would appear that the presiding officer failed to take cognisance of his circumstances when making the ruling. Khumo continued to plead his case to the presiding officer; when they failed to reach a consensus, the latter referred the case to the family advocate. The main role of the family advocate is to assist a family to reach an agreement with contentious custody, access and guardianship problems. If the parties are unable to come to an agreement, the family advocate assesses the parties’ circumstances in light of the child’s best interests and provides a proposal to the court (Mngomezulu 2019). However, Khumo argued that the family advocate also dismissed his case without considering all its merits. He had the following to say in this regard:

I remember trying to plead my case to her [the family advocate] and she stopped halfway through and asked my ex-girlfriend “What are you offering?”² She then concluded that there is no access problem because I do not have difficulty seeing the child. I explained to her as well that the current arrangement is difficult for me because of the distance between Tsakane where I stay and Atteridgeville where my child stays. She also dismissed the case stating that the child is too young for sleepovers.

The question posed by the family advocate to the mother of the child—“What are you offering?”—is particularly challenging because it seems to restrict the father’s ability to parent in line with the mother’s terms and preferences; her question firmly places the woman in the role of gatekeeper, implying that she has the authority to decide how much time and how frequently a father can see the child. It should also be noted that one element considered when drafting the parameters of the parental plan is the child’s age. The Office of the Family Advocate has created a set of principles for mediators to consider when creating parental plans, even though each case is evaluated on its own merits. For children under the age of three, these recommendations do not support overnight visits (Preller 2013, 44). However, it must be stated unreservedly that these are not cast in stone but are merely guidelines. According to Van Jaarsveld (2018, 78), the maturity, personality, attachment and developmental stage of the child should also be considered. She believes that this is in the child’s best interests. While this may be true, Khumo believed that the system has failed to uphold his parental right to have access to his children: he summarised this as follows: “Being denied [access] by the mother is fine but we are denied by the system, the system makes it more difficult.”

Mandla (40) is a father of five biological children (two from his first relationship, two from his second and one from his current) and he is also a social father to the two children of his current girlfriend. Mandla’s first two children were in Swaziland; despite the distance he connected with them on a regular basis through phone calls and occasional visits, among other things. He also lived in the same household as his youngest biological child, who is a year old, and his girlfriend’s two children. Mandla was in a constant battle for custody with the maternal grandparents of his second two children (8 and 11) and he believed the family court had done little to aid him in his fight to be a present and involved father in his children’s lives. Mandla explained that he had lived with the mother of his third and fourth children for 10 years before her untimely death. This qualified him as a father to acquire full parental rights over his children in accordance with section 21 of the Children’s Act because he was in a life partnership with the mother at the time of their conception and birth. He indicated that when his deceased girlfriend was still alive he had made countless attempts to pay lobola³ for her as the mother of his children but her parents refused because they called him a kwerekwere. The reference to Mandla as a kwerekwere was derived from the fact that his father was a Mozambican who married a South African woman. Kwerekwere is a derogatory term used to refer to foreigners, especially Black foreigners from other African countries (Moyo 2020). Upon the death of his girlfriend, the maternal side of the family took the children, citing that Mandla had not paid lobola and thus had no right to the children. This was despite the fact that Mandla had lived with his children from birth until their mother died. During the interview in 2019, he explained that the last time he had seen his children was on 30 April 2017.

Like Khumo, Mandla had been involved in several court cases over the past few years. His first encounter with the children’s court came shortly after the death of his girlfriend of 10 years. He indicated that in all his encounters, the system was biased against him and in the process vilified him because he was vocal even in the media. He summed it up as follows: “I have been a victim of the systems.” Mandla explained that during his first attempts to gain access to his children, the mediators recommended to the court that Mandla needed to first receive a psychological evaluation at the cost to him of R600. This recommendation came after the maternal grandparents expressed concerns about Mandla’s mental health. According to Thompson (2012), psychological testing in child custody cases is conducted to make sure that the father is not potentially harmful to the child. However, Mandla was of the view that this strategy was used as a measure to deter him from having custody of his children. Coupled with this was the R900 that he would have had to pay to a court-appointed psychologist for a three-hour supervised visit, bringing the total to R1500. The recommendation for a supervised visit was based on the psychological evaluation. Additionally, R900 would need to be paid for every three-hour supervised visit. In response to this Mandla said: “We are fighting against a multimillion-rand industry here, my brother, an industry of social workers and psychologists hoping to cash in on our misfortunes.” In his view, when a father challenged the children’s court and related bureaucracies, he put himself in danger because he was “touching people’s livelihood.” He believed that social workers, psychologists and lawyers manipulate the system in order to make the most money out of it. Mandla recalled that it was at this point that he began approaching various law firms,⁴ the DSD⁵ and the children’s court. He maintained that he spent all his money paying lawyers and approaching courts to gain access to his children. Among other things, he explained that he had to take on extra work such as farming to raise enough money for court payments. He had made great efforts to get the attention of the country’s policymakers. One of these actions went to the extreme of organising a sit-in in a government office and refusing to leave until his issue was attended to. He had also appeared as a guest on the television programme Abobaba, which looks for ways to help fathers who are estranged from their children. Mandla also took the fight to the DSD, as he maintains that the social workers have been biased against him. In our conversation, which took place a week after Mandla’s sit-in ended, he informed me that the DSD had assigned a social worker to handle his case.

In summary, therefore, when it comes to custody disputes, Mandla had a very negative opinion of the South African legal system. This was motivated by the numerous difficulties he had encountered when attempting to see his children. It was against this backdrop that, in essence, he did not believe that the principle of the best interests of the child served the needs of the child. The Commission of Gender Equality report came to a similar conclusion on the incoherence of the legal and social system, as well as the maintenance problems, parenting plans and poor execution of the mediation process (Commission for Gender Equality 2021). The principle of the best interests of the child is often neglected and/or used as a tool to promote bias against fathers. As Mandla summarised it: “I feel like sometimes ‘best interest of a child’ is a phrase used to block fathers while allowing social workers to push their agendas. I feel like the system is against fathers, regardless of how we try to step up” (Mandla, September 2019).

The gaps in the system

Gaps in the system were identified by the participants of this study, which they perceived as often being used by women to frustrate and undermine fathers’ attempts to be actively involved in the lives of their children (see also Baker and Fine 2014; Bosch-Brits, Wessels, and Roux 2018). Khumo explained that the mother of his second child used the gaps in the system to deny him access to his child. He and his ex-partner were assigned a social worker from the DSD as a mediator. The role of the social worker was to assist the two in drawing up a parenting plan that would be fair for both while taking into consideration the best interests of the child. However, when the two failed to reach an agreement, both the mother and the maternal grandmother of the child threatened to relocate the child to another province if Khumo’s demands for shared custody continued. According to him, the two indicated that they would relocate the child as a means of preventing him from ever seeing the child. However, after the case, the court mandated that the child’s mother continue to attend mediation sessions until they arrived at a consensus. Following the finalisation of the parental plan, the social worker secured a court date for the plan to be endorsed by the magistrate. While waiting for the court date, Khumo received a call from the mother of the child informing him that she and the child had relocated to KwaZulu-Natal. On the predetermined court day, the mother failed to appear. When asked, the social worker told the magistrate that the mother had relocated. When I asked him about the measures the court took to get the mother to return to Gauteng to appear before the court, Khumo said:

The case was deferred on two occasions and eventually, the administration approved that my son was in a different jurisdiction. This meant I would have to approach the court where my son is currently located. The question I kept asking the social worker and the magistrate is “What evidence do I have that when I go to KZN [KwaZulu-Natal], she will not move to another jurisdiction with my son?”

The term “jurisdiction” used by both the magistrate and the social worker is found in section 29(1) of the Children’s Act, which states: “An application in terms of section 22(4)(b), 23, 24, 26(l)(b) or 28 may be brought before the High Court, a divorce court in a divorce matter or a children’s court, as the case may be, within whose area of jurisdiction the child concerned is ordinarily resident” (Republic of South Africa, 2005, 47). Section 22(4)b relates to an order that is made to the High Court, divorce court or children’s court on application for a parental agreement between the two parties, while sections 23 and 24 relate to an application made by an individual to the High Court to request an assignment of contact/care of the child and assignment of guardianship, respectively (Republic of South Africa, 2005, 44). Finally, section 26(I)(b) refers to a court order by a person claiming paternity and section 28 to a court order for a termination, extension, suspension or restriction of parental responsibilities and rights. The case of Khumo reveals a potential weakness that women who are determined to deny fathers access to their children could take advantage of. He was clearly frustrated with the system during the interview, mostly because he felt the court had not performed its duties properly. He believed that the court had failed to sufficiently exercise its authority in the matter and/or exhaust all options available before closing the case and referring it to a different court. He believed the mother of the child should have been subpoenaed, among other things. He felt that both he and his son were let down by the system. When I asked him about the possibility of pursuing the custody case in KwaZulu-Natal where the child was located, he gave three reasons that prevented him from going to KwaZulu-Natal: he did not have any guarantee that the mother would not change jurisdiction again to a different province; going to KwaZulu-Natal would mean uprooting his life and giving up his livelihood; and he had another child in Gauteng, and relocating would mean leaving his other son behind.

Mike, too, expressed concerns about the injustices he had experienced in his repeated contact with the magistrate’s court, to which he was called for missing his maintenance. Mike further argued that the magistrate’s court seems to be simply focused on fathers’ financial provisions and pays no attention to paternal involvement. He argued this based on the fact that he had approached the children’s court countless times, to no avail. He had also used the platform of the maintenance court to intervene but the court referred him back to the children’s court. This is interesting considering that both the children’s court and the maintenance court are located within the magistrate’s court.

Mike explained that, despite the fact that he had approached the children’s court countless times to seek intervention, he had not seen his child for approximately two years. When asked about the support role of the children’s court, Mike asserted that his ex-partner had discovered a way to rig the system. He explained this as follows:

I have three court orders from the children’s court granting me access to the child. The reason we have three court orders is that the first [court order] was not adhered to, the second one was not adhered to and the third one. After the third one they [magistrate] said ohkie let us try mediation which also failed, we had mediation four times [and] it just collapsed. (Mike, November 2019)

Mike stated that each time he appeared before the children’s court, the mother of his child gave the magistrate the impression that she was ready to engage in discussions over the creation of a parenting plan. He asserted that after a mediator was chosen, the mother started making unreasonable requests and interfering with the procedures. Because both parents must agree on the terms before the parental plan can be finalised, he argued that this behaviour put the mediator in a tough situation. If a compromise cannot be reached, the matter must be sent back to the magistrate for a decision. However, in Mike’s case, the magistrate’s ruling was simply to refer the matter back for mediation, each time with a new mediator. Mike experienced three challenges from these rulings. Firstly, no provision was made by the magistrate to allow him access to the child while the mediation process was ongoing; as such, the mother continued to deny him access to the child. Secondly, the introduction of the new mediator generally meant that the case was treated as a new matter, giving little to no thought to the results of previous mediation attempts. This was especially exasperating for Mike because it made it impossible for the court to pinpoint the root of the issue, which in this case, he felt, was the mother’s delaying strategies, without tracing previous incidents connected to the current issue. At the time of this interview, Mike had already gone before the children’s court four times, and each time the case was sent for mediation. Thirdly, the mother’s delaying tactics were not punished by the system. Section 35 of the Children’s Act outlines as follows:

(1)

Any person having care or custody of a child who, contrary to an order of any court or to a parental responsibilities and rights agreement that has taken effect as contemplated in section 22(4), refuses another person who has access to that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities and rights or who prevents that person from exercising such access or such responsibilities and rights is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.

However, in Mike’s case, the mother had refused to enter a formal parenting plan and, accordingly, there was no court order in place. Mike presented this as a major gap in the system. Based on the challenges expressed above, Mike concluded that the court system appears to favour mothers over fathers in child custody cases. He says:

I think the law and the courts need to apply the law of equity because if you go to maintenance court they have mechanisms and systems to get you to pay [maintenance], but in the children’s court [for custody issues], they have nothing they can say “here is a court order issued” so is up to whether the other party compliance or not.

Mike concluded that the court’s inability to force his ex-lover to come to an agreement and/or draw up a plan represented a fundamental flaw, which could be used by other mothers to deny fathers access to their children.

Zondo (62), the fourth participant included in this case study, was a father of five—three from his previous marriage (25, 21 and 15), and one (11) from the current marriage. He was also a social father to one child (21), the daughter of his second wife. Zondo indicated that during his divorce in 2004, he had signed a parenting plan with his ex-wife. Nevertheless, his ex-wife flagrantly ignored the court order that was put in place to guarantee joint custody of their children. When asked about the measures he took to gain access to his children he replied as follows:

I got a court order, but then because she did not care about it. The violation of the court order would mean she could have ended up getting arrested, something I did not want to see happen. So, I ended up just living with the situation for the sake of the children. (Zondo, February 2020)

Zondo thus feared that the enforcement of the parenting plan would mean that his ex-wife would be arrested. In his view this would not be in the best interests of his children; as a result, he decided not to report her to the court. He explained this as follows:

For the sake of the children and for her not to be in trouble with the law. Because she broke the court order knowing what the consequences would be. So, if I was cruel, I could have reported it, but she was going to be arrested and I did not want that. That is why I lived with the situation.

I questioned Zondo’s usage of the words “for the sake of the children” in his response. He explained that even though his ex-wife had chosen to flout the requirements of the court order, if he had gone to court to denounce her failure to comply with it, it would have put the mother of his children in a position where she would be detained for contempt of court. To prevent the disagreement from affecting the children, Zondo sacrificed himself for their sake, which most likely means that he was striving to uphold the best interests of the child principle directly or indirectly while he was at odds with his ex-wife. It is important to note that Zondo was not necessarily let down by the system’s flaws, but was influenced by his concern over the negative consequences that the application of the law would have on his children.

The effectiveness of the children’s court

As noted above, Mike also compared the effectiveness of the magistrate’s court in dealing with maintenance cases to the perceived effectiveness or lack thereof of the children’s court in custody cases. However, this statement is negated by an empirical research study that found that delay in finalising cases emerges across all levels of the court system, with both child custody and maintenance cases taking a long time to be resolved (Botha 2024). Botha’s study found that in the children’s court, 80.3 per cent of cases take more than six months to resolve, while 46.6 per cent of maintenance cases take approximately a year to resolve. Such delays leave litigants frustrated and exacerbate the conflict between biological parents, ultimately affecting children who need care and protection.

In the excerpt below, Mike advocates for the merger of the children’s and the magistrates’ courts to enhance the effectiveness of both. However, in South Africa every magistrate’s court has a dual responsibility as a children’s court and maintenance court, and therefore has the jurisdiction to advocate both custody and maintenance cases (RSA 2005). Nonetheless, the difference in approach is precipitated by the laws that govern each. The children’s court is a special court formed in term of the Children’s Act of 2005 that hears cases involving children, including cases involving abandoned, neglected or abused children, making decisions on their care and safety. Similarly, every magistrate’s court for a district, established in terms of section 2(1)(e) of the Magistrates’ Courts Act of 1944, is a maintenance court within its area of jurisdiction. Therefore, Mike’s view is simply that cases of maintenance and denied access should be dealt with simultaneously. This view implies that when dealing with maintenance cases, the father can raise issues of denied access or alienation. Furthermore, the perception is that the same speed that the magistrate court employs in resolving maintenance cases should also be applied to child access cases: “I feel like they should run together, maintenance court⁶ and Children’s court should be one thing. The maintenance court is harder on defaulters while the Children’s court is lenient on mothers who deny fathers access to their children.”

Mike also felt that the magistrate’s court did not consider all arguments. Studies in South Africa have shown that the maintenance system fails to acknowledge the difficulties that fathers experience, which are mostly financial (Chauke and Khunou 2014). In addition, it appears that the maintenance system exclusively emphasises fathers’ roles as providers, ignoring other contributions (Chauke and Khunou 2014). Considering this, Mike felt that the courts appeared to be demonising men without considering their situations. In the excerpt that follows, he describes how a female judge equated fathers’ inability to support their children with misbehaviour in the child. This assertion by the judge is inaccurate and unsupported by any empirical data. In addition to the environment, the company a child keeps and inadequate parental supervision, experts acknowledge that a father’s absence is but one of the contributing elements to children’s negative behaviour (Lesch and Scheffler 2016; Wessels and Lesch 2014).

I remember being there, I had not paid in one month, I got called to court, there was a case before mine. A female magistrate asked the guy [maintenance defaulter], when are you paying for your child’s maintenance and he replied, “I am unemployed and I cannot afford the amount being requested.” The magistrate said, “Today we have criminals because of fathers like you who leave children to sleep hungry. These children go on and break into people’s houses in order to survive.” This really rattled me and I could not say anything and the poor guy could not respond and he was told on this day you will pay, that is it, case close[d]. So, I felt like they do not look at the whole picture to say if the father cannot pay, maybe let us make a different arrangement to say okay what can you afford? (Mike, November 2019)

Generally, Mike believed that the court system in South Africa was failing men by refusing to acknowledge the economic circumstances many fathers face. A similar view is held by Chauke and Khunou, who argue that simply applying punitive measures against maintenance defaulters does not consider the conditions men are faced with such as the high unemployment rate among South African men (Chauke and Khunou 2014). They state that it is erroneous to assume that men who do not pay maintenance are simply refusing to do so. Mike added that the system was biased against South African fathers, punishing them while letting mothers involved in parental alienation go free. Bias may also be seen in the fact that while maintenance defaulting is illegal, denying access to children is not. In her article, Malinga (2021) argued that the current gender bias in various systems needs to be removed in order to enable and encourage men’s participation in childcare.

Discussion

The study findings denote the role of the South African family law system in perpetuating the marginalisation of fathers through its treatment of custody and access disputes. In this section, key issues pertaining to the above findings are discussed.

The negative portrayal of fathers

The voices and lives of non-resident fathers have been shown to be largely absent from research and that which has included them has been subject to methodological barriers (Edin, Fredriksson and Åslundet 2003). This has resulted in a relatively inaccurate portrayal of the lives of these fathers and their children. Non-resident fathers tend to be portrayed as uncaring and uninvolved, paying little attention to their children and more attention to their own lives (Van den Berg and Makusha 2018). These views have often been shown to be fuelled by negative stereotypes and do not represent the heterogeneous group of non-resident fathers. The level of involvement between non-resident fathers and their children has been said to vary depending on the children's age and certain circumstances (King 1994). Despite this, the absence of a picture of non-resident fathers from certain demographics may give the impression that all non-resident fathers have little to do with their children. This is detrimental to the children of non-resident fathers, and research, including my own findings here, has shown that this is a less-than-accurate picture.

Courts continue to serve an important function in supporting young children. However, they tend to do so in a gender-biased way which often discriminates against fathers who seek to be involved in childcare. The maternal law of nature and social norms seem to advantage women as primary caregivers during relationship dissolution and, in turn, reinforce historical and traditional gender roles. This often renders such men helpless and hopeless, leaving them to conclude that the system is failing them, as observed in many of the above quotes.

The study participants identified some of the greatest difficulties fathers face today as being the failure of the South African legal system, the impact of the media and the disregard for the contribution fathers make to children’s well-being. According to Chauke and Khunou (2014), the media frequently portrays fathers in a negative light without considering the structural difficulties that men are confronted with. Some of the participants, as mentioned above, felt that women were treated more favourably by the South African legal system than men in custody disputes. Some participants said that it appeared the South African legal system even supported parental estrangement. In recent years, this topic has also gained importance in the media. Moreover, according to a cross-national study conducted in Argentina, Brazil and the United States, women often spend more time with their children than males (Esteves et al. 2018). Similarly, Poppy Louw (2013) asserts that in South Africa the courts continue to favour women when deciding who gets custody of the children because in 90 per cent of cases, women are still given custody (Louw 2013). Durden, Mbeve, and George (2021), as well as the Commission for Gender Equality (2021), support the view that the South African legal system favours women as primary caregivers. The Commission for Gender Equality (2021) also found that women themselves believed that the law favours them in custody cases.

What comes through clearly in the narratives of these participants is that mothers who are in possession of the children (who are living with and caring for them) are in a very powerful negotiating position. As they say, possession is nine-tenths of the law. The best interests of children have historically been understood primarily as resting with the mother, and it is only relatively recently that the role of fathers in the lives of children has been appreciated. Furthermore, the rights of fathers have only recently become a focus in law. In these respects, the absent father suffers a historical and legal disadvantage, which is compounded by a view among court officials and others involved in the administration of social welfare that men are negligent. The result is that in the implementation of the law, fathers are often not given a sympathetic hearing. A similar scenario often plays out in divorce proceedings.

However, on a positive note, the recent court rulings, and proposals by policymakers to reform the portrayal of fathers in South Africa, seem to suggest that the pleas and silent cries of fathers are finally being taken into consideration. In a landmark case in January 2024, a mother was sentenced to 12 months in prison for denying the father access despite the man consistently paying maintenance of R15 000 a month (Venter 2024). This was preceded by a case in the Pretoria High Court in January 2022 that saw a mother and the maternal grandmother sentenced to 30 days in jail, which was suspended for one year, for failing to adhere to the court ruling to grant the father access to the child (Maromo 2022). In this case, the Honourable Justice Mabuse made the following statement: “It is humanly incomprehensible why one parent would refuse the other parent’s rights of access to their own child. Courts will never allow parents to use children as pawns where they notice such conduct” (Maromo 2022). These rulings are commendable and will likely be key in judicial transformation and addressing gender bias in custody cases. Furthermore, the decisions will assist in deterring women from acting as gatekeepers in the absence of parental engagement. These judgements represent a breakthrough for the participants of this study who are in a similar situation. Judgements such as these reassure non-resident fathers that the historical landscape is changing. It is recommended that the judiciary use the judgements in these cases to guide future decisions. There are also several key court rulings that have affected and possibly changed the landscape of fatherhood in South Africa, such as the Constitutional Court ruling that unmarried fathers may change the child’s surname in instances where the mother is deceased, has absconded or is undocumented (Venter 2021). The DSD is currently in the process of amending the Children’s Act. Once approved, the act will strengthen the parental rights and responsibilities of unmarried fathers in South Africa. Among other things, the act recommends the involvement of children with enough maturity in the drawing up of a parenting plan (RSA 2022).

Significance of the accurate portrayal of fathers

The accurate portrayal of fathers refers to an honest and balanced depiction that reflects the true experience of fathering as closely as possible. It is unrealistic to expect correctness in every detail all the time, but the general thrust of the portrayal is important. The accurate portrayal of non-resident fathers in South Africa is critical for several reasons. Firstly, a large amount of research conducted regarding non-resident fathers in South Africa has been in relation to the negative psychological and behavioural effects non-resident fathers have on their children (Richter and Morrell 2006). The majority of this research comes from the perspective that non-resident fathers have abandoned their children and families and have ceased to be involved in their lives. While this may be the case for some non-resident fathers, particularly in the context of divorce, it is not accurate to assume that all fathers who no longer live with their children have abandoned them. This assumption of abandonment is based upon a western ideal of what a family ought to be, and whilst it may ring true with regard to middle-class white South African families, many African families view fatherhood as a provider role rather than a nurturer role (Richter and Morrell 2006). The assumption of abandonment also assumes that non-resident fathers have a choice in whether they maintain contact with their children or not, and that they opt not to be involved. While there are definitely cases where fathers could be more involved in their children’s lives, paternal contact is often affected by the amount of time and money fathers have available (Madhavan, Townsend, and Garey 2008) and the relatively high levels of male labour migration within South Africa (Posel 2001). This is particularly pertinent when considering the millions of children who have been left behind in rural South Africa while their parents seek work in urban areas or other countries (Posel and Rudwick 2013).

Fathers’ mental health

While seldom spoken about, it became apparent in this study that fathers’ mental health seems to be affected by never-ending court cases that do not yield results. Fathers expressed their frustration with the blockages they encounter in the system. In the interview with Khumo, for example, the total time of the recording was two hours and 21 min because he was so overtly emotional that the interview had to be paused countless times to allow him to compose himself. Moreover, with regard to Mandla’s extreme measures to access his children, the court had to recommend a psychological evaluation to determine his mental state. Fathers’ mental health often suffers as a result of the stress brought on by never-ending court disputes, increasing maintenance requirements, and fewer opportunities to spend time with their children. This finding corresponds with those of the Commission for Gender Equality (2021), which identified the deep emotional wounds that being denied access to their children caused. One of the participants in the Commission for Gender Equality study reported that during the period when he was denied access and was engaged in court battles, he lost a considerable amount of weight, was unable to sleep and was admitted for psychiatric treatment because he was suicidal. Therefore, denied paternity has the potential for cumulative negative effects on fathers over the life course. According to Makusha and Ratele (2021), studies have also found that a father’s absence from his children increases paternal depression and anxiety. However, this does not necessarily mean that fathers who live with their children do not experience mental health challenges. Added to this, it is vital to highlight that this study did not investigate, corroborate, or validate the fathers’ mental health as a result of being refused access to their children. And while this study focused only on non-resident fathers, it is important also to note that the participation of fathers in the lives of their children has a positive impact on women’s and children’s mental health and general well-being.

The perceived failure of the system

This article has argued that the primary reason for the widespread disillusionment with the current law is that it is biased in favour of parents’ rights and has failed to promote children’s rights as the primary consideration in all matters affecting children. This view is well supported by the current legal position in which it is uncertain whether the best interests principle is the paramount consideration in all matters concerning children. In A M v. M F, the court stated that the best interests principle is not a rule of law but rather a guide to the solution of the problem which must be deduced from the legislation read as a whole and its common law development. This view has been interpreted to mean that the best interests principle is subordinate to other considerations in certain matters. An early empirical study in 1995 found that the Children’s Act principles were not being implemented in practice and children’s interests were often being sacrificed for the sake of reaching a quick resolution between their parents. This is still the view adopted by children’s attorneys who participated in recent studies (see Botha 2024). They identified the continued existence of a primary maternal preference for custody (i.e the courts prefer mothers to have custody) and a conservative interpretation of the concept of custody even in those cases involving abusive or neglectful mothers. This poses considerable difficulties regarding today’s changing societal norms and family structures.

In their respective cases, participants of this study alleged that the South African legal system—particularly the Children’s Court—had failed them. Despite the differences in their circumstances, some patterns can be found. One of the primary issues is that the children’s court takes longer to handle instances of fathers being denied access to their children, while the maintenance division of the magistrate’s court appears to respond quickly to cases presented to it. It also appears that maintenance issues are quickly resolved but access requests frequently go unresolved owing to a lack of agreement between the parties, as in the case of Khumo. In Mike’s case, the children’s court failed to enforce the drawing up of a parenting plan that would ensure that both parents carried out their rights and responsibilities as outlined in the Children’s Act of 2005. It appears the system did not have an alternative means to enforce shared custody. The system also failed to hold the mother of Khumo’s second child in contempt, after she relocated with the child to a different province without informing the father, the mediator or the court. This shows the disdain of some women for the children’s court and exposes the gaps that exist within the system.

The continued insistence of the maintenance system to look on fathers as simply financial providers undermines the men’s needs and/or desires to be actively involved in their children’s lives. This article builds on the work of Eddy, De Boor, and Mphaka (2013) and the Commission for Gender Equality (2021) which concluded that some fathers tend to respond to the inefficacies of the court that inhibit fathers’ access to their children by reneging on their maintenance payments as a way to invoke the discourse on access to courts. However, intentionally withholding maintenance to force the mother to grant the father access to the child fundamentally undermines the principle of the best interests of the children—mainly because the payment is meant to cater for the child’s basic needs such as clothes, food and school fees. From a gender perspective, however, it is important to note that mothers seeking maintenance payments have similar problems. As outlined above, Botha (2024) found that only 1.4 per cent of maintenance cases are finalised within a three-month period, with the majority of cases taking up to a year to be resolved, thus leaving mothers and children stranded and frustrated.

Conclusion

The participants of this study recognised that the introduction of the new Children’s Act was a measure to promote shared custody. For instance, where mothers were once awarded automatic primary custody, the act now states that both the mother and the father have equal rights to custody and specific guardianship. However, the findings of this study suggest that despite the amendments to the Children’s Act which aim to further gender equality, the reality for fathers remains unchanged. Through personal experience and anecdotal evidence, it is evident that fathers are continuously being placed at a disadvantage in custody litigation. This article attempted to examine the underlying reasons for this state of affairs, focusing particularly on the failures of the South African family law system in effectively enforcing and implementing legislative reforms to achieve just and equitable custody outcomes.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 Inhawulo: a cultural practice whereby payment, usually offered in the form of cattle or money, is tendered by the father to the girl’s or woman’s family for impregnating her outside of marriage (Van den Berg and Makusha 2018).

2 The question “What are you offering” refers to how often the mother is willing to allow the father visitation rights.

3 Sometimes referred to as “bride price” or “bride wealth”, is property in cash or kind, which a prospective husband or head of his family undertakes to give the head of the prospective wife's family in consideration of a customary marriage (Van den Berg & Makusha, 2018: 75).

4 Mandla mentioned all these law firms by name and the government officials he had been in contact with. To protect his identity, some of the details had to be omitted.

5 Mandla also shared a letter that he had written to the Minister of Social Development.

6 Maintenance cases fall within the jurisdiction of the magistrate’s court. However, since the magistrate’s court deals with a range of criminal and civil cases, the section dealing with maintenance has become known to most people in South Africa as the maintenance court.