Being cut out of a grandchild’s life can happen abruptly. A parent dies, a relationship breaks down, an argument divides a family, or a surviving parent decides that contact with the extended family should stop.
Grandparents in this position often search for information about grandparent rights in South Africa and want to know whether a parent can simply prevent them from seeing their grandchild.
The legal starting point is important: grandparents do not automatically acquire a right to contact with a grandchild merely because they are grandparents. When people refer to grandparent rights in South Africa, they are usually referring to the legal mechanisms through which a grandparent may seek contact with, or in appropriate circumstances care of, a child.
Section 23 of the Children’s Act 38 of 2005 allows a person who has an interest in the care, well-being or development of a child to approach a court for an order granting that person contact with, or care of, the child.
This distinction matters. Having a meaningful interest in a child’s life may give a grandparent or another non-parent a basis to approach the court. It does not mean that contact already exists as an enforceable legal right.
The central question is whether the order sought is in the best interests of the child.
If you have been denied contact with a grandchild and are considering court proceedings, it is sensible to assess the history of the relationship, the available evidence and the appropriate forum before launching an application. You can contact Vermeulen Attorneys to discuss a children’s matter.
Are Grandparent Rights in South Africa Automatic?
No. Understanding this point is essential when discussing grandparent rights in South Africa.
Section 23(1) of the Children’s Act provides that any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in a divorce matter, or the Children’s Court for an order granting contact or care.
Section 23 therefore does not create a blanket category of automatic rights belonging to every grandparent. A grandparent seeking a court order must establish the necessary interest and persuade the court that the relief sought is consistent with the child’s best interests.
When considering the application, the court must consider matters including the child’s best interests, the relationship between the applicant and the child, the applicant’s commitment to the child, financial contributions relating to the child’s birth and maintenance, and any other relevant fact.
We discuss the factors a court weighs in a grandparent’s application in a separate introductory article. In a contested case, however, an important question is how those factors can actually be proved.
Who Can Apply for Contact Under Section 23?
A person seeking relief under section 23 must be able to demonstrate a genuine interest in the child’s care, well-being or development.
Biology can be relevant, but it is not determinative. The provision is not restricted to grandparents. Depending on the facts, step-parents, aunts, uncles, former partners of a parent or other people who have developed a substantial family-type relationship with a child may potentially rely on section 23.
This is why grandparent rights in South Africa are better understood through the relationship between the applicant and the child than through the biological label alone.
The strength of a grandparent’s case may depend on matters such as:
- how long the grandparent has been part of the child’s life;
- how frequently the grandparent and child previously spent time together;
- whether the grandparent provided regular care or emotional support;
- whether the child lived with or regularly stayed with the grandparent;
- the role the grandparent played in the child’s upbringing;
- whether the relationship has been stable and beneficial to the child;
- why contact stopped; and
- what effect restoring, limiting or refusing contact may have on the child.
The Gauteng Full Court considered the standing requirement in R.C v H.S.C (A5033/22) [2023] ZAGPJHC 219; 2023 (4) SA 231 (GJ). The applicant was not the child’s biological father but had occupied a significant role in the child’s life. The Full Court held that the absence of a biological link was not a bar to a section 23 application and that the applicant had the required interest to approach the court.
The judgment also demonstrates why children’s litigation should not be approached as an ordinary contest between adults. Where disputed facts affect a child’s welfare, appropriate investigation and professional evidence may be required.
What Evidence Helps Establish Grandparent Rights in South Africa?
A grandparent seeking relief under section 23 should explain what the relationship with the child actually looked like. In practice, this evidence can be central to an application concerning grandparent rights in South Africa.
General statements such as “I love my grandchild” or “I have always been there” may be sincere, but a contested application usually requires more substance.
Depending on the facts, useful evidence may include:
- a clear chronology showing the history of contact and caregiving;
- messages demonstrating previous contact arrangements and involvement;
- records of regular visits, holidays or overnight stays;
- evidence of school, sporting, medical or extracurricular involvement where relevant;
- photographs considered together with other evidence of an established relationship;
- evidence of practical caregiving or financial support;
- communications showing reasonable attempts to resolve the dispute;
- appropriate witnesses with direct knowledge of the relationship; and
- a realistic proposal explaining how future contact would operate.
The evidence should remain child-centred. A large collection of hostile messages demonstrating conflict between the adults may establish that the relationship has broken down, but it does not necessarily establish why the proposed contact order would benefit the child.
Grandparent Contact After the Death of a Parent
Some of the most difficult disputes concerning grandparent rights in South Africa arise after a parent dies.
A surviving parent may understandably want stability and space for the child after bereavement. At the same time, ending a child’s relationship with the deceased parent’s family may affect relationships that previously formed part of the child’s family life, identity, culture and support structure.
Y.C.M v N.D.N (CA04/2024) [2024] ZAECMKHC 144, a not-reportable Eastern Cape High Court judgment delivered on 10 December 2024, provides a useful practical illustration.
The maternal grandmother had successfully applied in the Children’s Court for contact with her two grandsons after her daughter died and the children’s father opposed continued contact.
The Children’s Court process included an investigation by the Department of Social Development. Social workers provided evidence, and a legal representative was appointed for the children.
On appeal, the High Court maintained the grandmother’s contact but made the arrangements considerably more precise. The order dealt with weekly electronic contact, specified monthly visits, school-holiday contact and supervision during the first extended visits.
The judgment does not establish that a bereaved grandparent automatically acquires contact. Rather, it illustrates how a court may examine the child’s actual family relationships and needs when considering whether contact should be ordered and how that contact should operate.
Children’s Court or High Court for Grandparent Rights in South Africa?
A grandparent considering a section 23 application must also consider the appropriate court.
Section 23 allows an application to be brought in the Children’s Court or High Court, subject to the applicable jurisdictional requirements.
For a relatively straightforward dispute about contact between a grandparent and grandchild, the Children’s Court will often be an appropriate forum to consider first.
The Children’s Court process can include affidavits, responses from the parent, social-worker investigations, interviews, professional reports, attempts at settlement and, where appropriate, legal representation for the child.
Section 29 of the Children’s Act also permits a court dealing with applications under sections 23 and 24 to obtain reports or recommendations from a Family Advocate, social worker or another suitably qualified person and to order further investigation.
You can read more about the role of the Family Advocate and how professional input can assist courts in children’s matters.
The High Court remains the upper guardian of all children. It may be the more appropriate forum where the facts are unusually complex, there are existing High Court proceedings, genuinely urgent relief is required, substantial expert evidence is anticipated, or broader issues concerning guardianship or the High Court’s inherent jurisdiction arise.
There is no universal rule that every dispute concerning grandparent rights in South Africa should be brought in the same court. Forum choice should form part of the initial legal assessment.
If you are considering a Children’s Court contact application, our Children’s Matters team can assess the relationship history, relief sought and appropriate forum before proceedings are commenced.
Guardianship Is Different From Grandparent Contact
Clients sometimes ask for “custody” when what they actually want is occasional contact. Others ask for guardianship when the real problem concerns consent for a passport, schooling, medical treatment or another significant decision.
These concepts should not be confused when considering grandparent rights in South Africa.
The Children’s Act uses the statutory concepts of care, contact and guardianship. “Custody” and “access” are older terms and should not be used interchangeably with the current statutory concepts.
Section 23 deals with the assignment of contact or care to an interested person.
Section 24 deals with guardianship. Under the current wording of section 24, an interested person may apply to either the High Court or Children’s Court for guardianship.
Where the child already has a guardian, section 24(3) requires the applicant to provide reasons why the existing guardian is not suitable to have guardianship in respect of the child.
Guardianship should therefore not be added to a contact application merely because it appears to provide stronger legal authority. The relief sought must correspond with the actual problem and the child’s best interests.
The amendments expanding jurisdiction are discussed further in our article on the Children’s Court’s expanded jurisdiction over guardianship.
What if the Child Does Not Want Contact With a Grandparent?
A child’s views can be highly significant in proceedings concerning grandparent rights in South Africa, especially as the child’s age, maturity and ability to participate increase.
Section 10 of the Children’s Act requires a child who is of an age, maturity and stage of development able to participate meaningfully in a matter concerning that child to be given an opportunity to participate in an appropriate way, with due consideration being given to those views.
That does not mean the child carries responsibility for deciding the case.
This distinction was addressed in D.T and Another v M.A.M.F (2023/032929) [2023] ZAGPJHC 1204.
The dispute concerned two uncles seeking relief after their brother, the child’s father, died. A section 10 assessment had recorded the 13-year-old child’s views about where he wished to live and the contact he wanted with his uncles.
The court held that the child’s views and wishes had to receive due consideration, but that the court did not have to defer to them. The ultimate enquiry remained the child’s best interests.
The court ordered a fuller investigation by a clinical psychologist, requested a Family Advocate enquiry and granted defined interim contact pending final determination of the substantive application.
A child’s objection should therefore never simply be ignored. Equally, a child should not be made responsible for resolving an adult legal dispute.
Why Applications for Grandparent Rights in South Africa May Fail
There is no formula guaranteeing success in a dispute about grandparent rights in South Africa. Section 23 applications are intensely fact-specific.
Some applications are weakened because the applicant focuses on their own loss rather than the child’s interests. Others seek too much contact too quickly or present no credible practical plan for how contact could operate without continually exposing the child to adult conflict.
Factors that may weaken an application include:
- very limited historical involvement with the child;
- a dispute driven primarily by anger at the parent;
- credible concerns about the child’s safety or well-being;
- an unwillingness to respect appropriate parental boundaries;
- pressuring the child to express a preference;
- criticising the parent directly to the child;
- treating financial contributions as creating an automatic entitlement to contact;
- refusing reasonable proposals for mediation or gradual reintroduction;
- posting about the dispute on social media; or
- demanding substantial overnight or holiday contact after a lengthy absence from the child’s life.
A better approach to grandparent rights in South Africa is not: “I am the grandparent, so I am entitled to contact.”
The appropriate question is whether there is an established relationship with the child and whether the evidence demonstrates that an appropriate contact arrangement would serve that particular child’s best interests.
A Grandparent Contact Order Must Work in Practice
Obtaining an order that merely provides for “reasonable contact” may leave a family with another dispute about what reasonable contact actually means.
Where relations between the adults are poor, an appropriate order may need to deal expressly with:
- days and times;
- collection and return arrangements;
- telephone or video contact;
- school holidays and special occasions;
- transport arrangements;
- neutral collection points where justified;
- supervised or phased contact where professionally recommended;
- how interrupted contact will be addressed; and
- appropriate arrangements for the child’s transition after a long absence.
The structured order made on appeal in Y.C.M v N.D.N demonstrates why practical detail can be important where there is a history of conflict.
A properly resolved matter may also result in an agreed arrangement being formalised. In K.R.S v C.L (A186/2023) [2024] ZAGPPHC 627, the High Court considered a later attempt by a father to rescind an existing Children’s Court order incorporating agreed arrangements and recommendations concerning a maternal grandmother’s contact. The appeal did not establish a proper basis for rescission.
The wider practical point is that parties should pay careful attention to the wording and consequences of an agreement before asking that it be made an order of court.
Should Grandparents Try to Resolve the Dispute Before Court?
Often, yes. Considering grandparent rights in South Africa does not necessarily mean that court proceedings should be the first step.
Depending on the facts, a carefully drafted proposal, attorney correspondence, negotiation or mediation may provide a more proportionate starting point.
Where agreement is legally possible, other provisions of the Children’s Act may also become relevant. You can read more about how parental responsibilities and rights may be acquired by a non-parent.
Mediation can be useful where the adults’ relationship has deteriorated but there remains a realistic possibility of agreeing on gradual and predictable contact without requiring a court to impose the arrangement.
Litigation should be considered carefully where there has been almost no meaningful relationship with the child, the child has a strong and mature objection to contact, credible safety concerns exist, the applicant’s motivation is primarily an adult grievance, or the proposed arrangement would perpetuate serious conflict around the child.
What Does a Section 23 Application Cost and How Long Does It Take?
There is no reliable fixed price or standard timetable for an application involving grandparent rights in South Africa.
A Children’s Court matter will generally offer a more accessible process than substantial High Court litigation, and public-sector social-worker involvement may reduce some investigative expenses. Legal costs can nevertheless become significant if the application is heavily opposed, witnesses are required or expert evidence becomes necessary.
High Court litigation ordinarily carries greater procedural and legal costs, especially where counsel, private experts or extensive motion proceedings are involved.
Timeframes also vary considerably. A comparatively straightforward matter may resolve within several months, while a contested case involving social-worker investigations, Family Advocate involvement, expert assessments, repeated postponements or an appeal can take considerably longer.
A court also retains a discretion concerning costs. Family and children’s litigation does not invariably produce an adverse costs order against the unsuccessful party, but parties should not assume that there can never be costs consequences, particularly where litigation is conducted unreasonably.
When to Get Attorneys Involved
The most useful time to obtain legal advice about grandparent rights in South Africa is often before proceedings are issued.
An attorney can help determine whether the history of the relationship supports a section 23 application, identify weaknesses that should be addressed before litigation, consider mediation or agreement where appropriate, choose between the Children’s Court and High Court, and ensure that the relief sought is practical and proportionate.
This is also the stage at which a grandparent should separate evidence about the child’s welfare from the wider adult conflict.
If you have been denied contact with your grandchild, speak to Vermeulen Attorneys about your children’s matter before deciding whether to institute a section 23 application.
Frequently Asked Questions About Grandparent Rights in South Africa
Are grandparent rights in South Africa automatic?
No. Grandparent rights in South Africa are not automatic merely because a person is biologically related to a child. Section 23 of the Children’s Act provides a mechanism through which an interested person may apply for contact or care. The court must consider the child’s best interests and the other relevant statutory factors.
Can a grandparent get contact if the child’s parent refuses?
Potentially. A parent’s refusal does not automatically give the grandparent a right to contact, and the refusal itself is not necessarily unlawful where no contact order exists. Section 23 does, however, allow an interested person to approach the court for contact or care.
Do I have to go to the High Court for contact with my grandchild?
No. A section 23 application may be brought in the Children’s Court or High Court, subject to the applicable jurisdictional requirements. The appropriate forum depends on the nature and complexity of the matter.
Can grandparents apply for “custody” in South Africa?
“Custody” is older terminology. The Children’s Act uses the terms care, contact and guardianship. Section 23 permits an interested person to seek contact or care. Guardianship is governed separately by section 24 and involves a different enquiry.
Can a grandparent apply for guardianship in the Children’s Court?
Yes. Under the current wording of section 24, an interested person may apply to either the High Court or Children’s Court for guardianship. If the child already has a guardian, the additional requirements in section 24(3) must also be addressed.
Can a child decide that they do not want contact with a grandparent?
A child’s views must receive appropriate consideration where section 10 of the Children’s Act applies. They can carry considerable weight depending on the child’s age, maturity and circumstances. The child does not, however, replace the court as decision-maker. The final enquiry remains what is in the child’s best interests.
What evidence should a grandparent collect?
Evidence relevant to grandparent rights in South Africa may include a chronology of involvement, evidence of regular caregiving and contact, relevant messages, records of holidays and visits, appropriate supporting witnesses and evidence of reasonable attempts to resolve the dispute. The evidence should demonstrate the relationship with the child rather than simply the conflict with the parent.
How long does a section 23 application take?
There is no standard timeframe. Investigation by a social worker or Family Advocate, expert assessments, opposition, court availability and settlement discussions can all affect the duration. A contested matter can take many months or longer.
Should I contact my grandchild directly if the parent has stopped contact?
Self-help is generally a poor approach. Attempts to bypass the parent, collect the child without consent, involve the child in the litigation or ask the child to choose sides may cause further conflict and may damage the applicant’s position. Legal advice should be obtained on an appropriate negotiated or court-based route.
Need advice about grandparent rights in South Africa?
Section 23 applications depend heavily on the history of the relationship, the available evidence, the child’s circumstances and the relief requested. Contact Vermeulen Attorneys for advice on the appropriate next step in your matter.
This article provides general information about South African law and is not a substitute for legal advice on the facts of a particular matter.
