F v L and Another

• Jurisdiction: South Africa
• Citation: 1987 (4) SA 525 (W)

F v L and Another
1987 (4) SA 525 (W)

1987 (4) SA p525

Citation	1987 (4) SA 525 (W)
Court	Witwatersrand Local Division
Judge	Harms J
Heard	March 18, 1987
Judgment	March 20, 1987

Flynote : Sleutelwoorde

Minor — Illegitimate child — Access — By natural father — He has no prima facie right of access — Therefore, not entitled to institute action to have such right determined — Appointment of curator ad litem for child in such envisaged action refused.

Minor — Paternity — Dispute as to whether child C illegitimate or the legitimate child of mother's husband — Applicant alleging he was the father of child, being an illegitimate child born out of wedlock — Mother having chosen her husband as the father of the child — Applicant having no prima facie right to declaratory order that he is the D natural father of the child.

Headnote : Kopnota

The father of an illegitimate child does not acquire parental authority over the child. He can, therefore, not acquire any of the incidents of parental authority and he cannot acquire them by having the child declared his natural offspring. The father, therefore, has no prima facie right of access to the child. It follows that he is not entitled to institute action to have this right determined and, in such circumstances, an application for the appointment of a curator ad litem for the E child in such an envisaged action must be refused.

The Court also refused the appointment of a curator ad litem for a child in a proposed action for an order declaring that the applicant was the natural father of the child where it appeared that, at the time of the sexual intercourse between the mother of the child and the applicant, the mother was married to the second respondent, that she had intercourse F during that period with the second respondent and that the mother had chosen the second respondent as the father of the child. The Court held that, in the absence of any authority or principle pointing in another direction, the applicant had no prima facie right to have himself declared the natural father in the face of the mother's presumably irrevocable choice of the second respondent as father.

Case Information

Application for the appointment of a curator ad litem. The G facts appear from the reasons for judgment.

André R Gautschi for the applicant.

C G Lamont for the respondents.

Cur adv vult.

Postea (March 20) H

Judgment

Harms J:

The first and second respondents were married to each other on 15 December 1978. This marriage still subsists. On 6 January 1979 the first respondent gave birth to a son. The I applicant alleges that he is the father of the child because he had sexual intercourse with the first respondent during April 1978.

The first respondent admits this sexual intercourse but alleges that she had sexual intercourse during that period with the second respondent as well. The applicant doubts the fact that she had, during that specific period, intercourse with the J second respondent, but it is common cause

1987 (4) SA p526

Harms J

A that the relationship between the applicant and the first respondent was terminated in May 1978.

The second respondent states, too, that he and first respondent had intercourse during the so-called critical period and he accepts that he is the father of the child.

B The applicant now wishes to institute an action for an order declaring that:

(1)

he is the natural father of the child;

(2)

he is entitled to rights of reasonable access to the child.

The causa for the relief sought is the allegation that he is C the natural father of the child. It is not alleged, nor was it argued, that any of the relief sought is in the interest of the child.

The present application is one for the appointment of a curator ad litem to assist and act on behalf of the child. The defendants in the action will then be the two respondents and the curator ad litem.

D The first objection taken on behalf of the...