Baars v Scott (556/93) [1995] ZASCA 71; [1995] 4 All SA 392 (AD) (31 May 1995)

Baars v Scott (556/93) [1995] ZASCA 71; [1995] 4 All SA 392 (AD) (31 May 1995)

South African law does not accord a father an inherent right of access to his illegitimate child. Parental authority, and thus the right to access, vests in the mother unless the father marries the mother or adopts the child. The child's welfare is the central consideration in determining access, and the father may be granted access only if it is in the child's best interests. The litigation is not adversarial, and there is no evidentiary onus on either party in first-time access or custody determinations. The matter should not have been decided solely on affidavit, and oral evidence should have been heard to properly investigate the child's welfare. The court a quo erred in requiring the...

Citation
[1995] ZASCA 71
Parties
Appellant: Barry Baars; Respondent: Jeanette Elaine Scott
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 May 1995
Case Number
556/93
Procedural Posture
Civil Appeal / Appeal From Dismissal of Application for Access to Minor Child
Outcome
Appeal upheld. The order of the court a quo is set aside and substituted with an order referring the application for oral evidence on whether access by the appellant to his minor child will be in the child's best interests. Costs are reserved for determination by the court hearing the oral evidence, subject to...
Judges
Corbett, E M Grosskopf, F H Grosskopf, Howie, Marais
Legal Topics
Parental Access, Best Interests of Child, Illegitimacy, Onus of Proof, Custody Dispute
Family and Children Parental Access Best Interests of Child Illegitimacy Onus of Proof Custody Dispute

Case Brief

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Parties

Barry Baars

Appellant

Jeanette Elaine Scott

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Application for Access to Minor Child

Legal Issues

  1. 1 Does the father of an illegitimate child have an inherent right of access to the child under South African law?
  2. 2 Is there an evidentiary onus on the applicant father to show compelling grounds for access?
  3. 3 Was the matter properly resoluble on affidavit or should oral evidence have been heard to determine the child's best interests?

Ratio Decidendi

South African law does not accord a father an inherent right of access to his illegitimate child. Parental authority, and thus the right to access, vests in the mother unless the father marries the mother or adopts the child. The child's welfare is the central consideration in determining access, and the father may be granted access only if it is in the child's best interests. The litigation is not adversarial, and there is no evidentiary onus on either party in first-time access or custody determinations. The matter should not have been decided solely on affidavit, and oral evidence should have been heard to properly investigate the child's welfare. The court a quo erred in requiring the...

Court Disposition

Appeal upheld. The order of the court a quo is set aside and substituted with an order referring the application for oral evidence on whether access by the appellant to his minor child will be in the child's best interests. Costs are reserved for determination by the court hearing the oral evidence, subject to...

Orders

  • The appeal succeeds and the order of the court a quo is set aside.
  • The application is referred for the hearing of oral evidence on a date to be arranged with the Registrar, on the question whether access by appellant to his minor child will be in the best interests of the child.