Articulating common law and statutory parental responsibilities : Wheeler v Wheeler 2011 2 All SA 459 (KZP)

Clear law on parental obligations is essential for promoting the best interests of children. In chapter 3 of the Children's Act 38 of 2005 the legislature aimed to improve the pre-existing law in this field, which was mainly long-established common law. It grafted onto that law a concept of "parental responsibilities and rights". In so doing, it unfortunately failed to provide sufficient guidance on whether or when this statutory concept should replace or alternatively merely supplement the previous law. An important attempt to address the resulting confusion which subsequently reigned in divorce matters in particular (cfJ v J 2008 6 SA 30 (C); and LB v YD 2009 5 SA 463 (T)) has been made by Rail AJ in Wheeler v Wheeler (2011 2 All SA 459 (KZP)). In our discussion of the judgment we firstly analyse the nature of the difficulties caused by the manner in which parental responsibilities and rights were conceptualised and interposed in chapter 3 of the act. We then explain the reasoning of the court, paying particular attention to the solutions provided for overcoming the disjuncture between key provisions in that chapter and the pre-existing law. In the final part of our discussion we offer some comments on the appropriateness of those solutions and on what still needs to be done to improve the law governing parental responsibilities and rights.