The starting point of any discussion around the best interests of minor children is Section 28 of the Constitution of the Republic of South Africa, Act 108 of 1996 (“the Constitution”) which deals with the rights which children have in South Africa.  These rights are then more fully set out in the Children’s Act 38 of 2005 (“the Children’s Act”) which codifies the law in so far as it relates to Children’s rights across the legal spectrum.  The Children’s Act has placed children at the centre of all matters which involve them so that the law takes a child centric approach when dealing with children.

Section 9 of the Children’s Act states that in all matters concerning the care, protection and well-being of a child, the standard of the best interests of the child as set out in section 7 must be applied.

Section 7 of the Children’s Act 38 of 2005 sets out some of the criteria that must be taken into account in any matter to determine what is in the best interests of minor children involved in the dispute. The list is however not exhaustive as the Courts can take into account any other factor which is of relevance to the matter before the Court.

The Courts in South Africa have adopted a wide discretion in dealing with any matter that affects the welfare of minor children. This is to ensure that any and all relevant factors are taken into account whenever dealing with a matter involving children.  The High Court is the upper guardian of minor children and in Baloyi v Baloyi (6208/2014) [2015] ZAGPPHC 728 stated that it is prepared to give regard to all such and other relevant factors in the exercise of its discretion to uphold the best interests of the minor children in any such matter before it.

In any divorce matter where minor children are involved, Section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 requires a Family Advocate to conduct an inquiry and avail recommendations with regards to the welfare of the minor children involved.

The determination of the elements in deciding what the best interest of the minor children are, is an objective one. In the matter P v P 2007 (5) SA 94 (SCA) the Court held that:

Determining what custody arrangement will serve the best interests of the children in any particular case involves the High Court making a value judgment based on its finding of facts in the exercise of its inherent jurisdiction as the upper guardian of minor children…”


A reading of the case law dealing with matters involving children, shows the importance of establishing that the relief being sought is in the minor children’s best interests, which requires the application of a skilled practitioner.

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