Mulomba v Idisa

The applicant, Gladys Mulomba, and the respondent, Kingsley Idisi, are unmarried parents of a minor child born on 27 May 2009 in South Africa. The respondent is from Nigeria. The parties never cohabited. The respondent was registered as the child's father with his consent at the Department of Home Affairs, thereby acquiring full parental responsibilities and rights. The respondent showed a lack of commitment to the child, did not maintain him or take an interest in his wellbeing, effectively abandoned the child, and was untraceable at the time of the application. The applicant was inconvenienced when seeking to travel out of South Africa with the child as she required the respondent's consent. The application was unopposed, with substituted service effected on the respondent.

• Whether a court may, under section 28 of the Children's Act 38 of 2005, terminate only parental rights while leaving parental responsibilities intact.
• Whether 'parental responsibilities and rights' under the Children's Act can be separated or must be treated conjunctively in an application for termination, suspension, or restriction.
• Whether a suspension of parental responsibilities and rights may be linked to a future event—specifically, an application for maintenance—consistent with section 28(1)(a)'s requirement that suspension be 'for a period'.
• Whether the obligation to pay maintenance survives a blanket suspension or termination of parental responsibilities and rights under section 28(1)(a).

1. The Respondent's parental rights and responsibilities in respect of the minor child are suspended until such a time as any application for maintenance is made by or on behalf of the minor child. 2. The Applicant is declared the sole guardian of the minor child during the course of the suspension, including powers to administer the child's property, apply for a passport and visas without the respondent's consent, and remove the child from South Africa without the respondent's consent. 3. The Department of Home Affairs is to register the minor child with the Applicant's surname. 4. No order as to costs.

Under section 28 of the Children's Act 38 of 2005, 'parental responsibilities and rights' must be treated conjunctively and not disjunctively. The Legislature did not intend that a court could suspend or terminate parental rights alone while leaving parental responsibilities (including the obligation to maintain the child) intact, as rights and responsibilities are two sides of the same coin and cannot be meaningfully separated. A suspension of parental responsibilities and rights under section 28(1)(a) must be for a defined period, which can be linked to the occurrence of a future event (such as an application for maintenance by or on behalf of the child).

The court expressed the view that the obligation to pay maintenance would probably survive a blanket termination or suspension of parental responsibilities and rights under section 28(1)(a), but stated it was not called upon to deal with this aspect in light of the terms of the order sought, which operated to preserve the right to claim at least future maintenance. The court also alluded to section 21(2) which preserves the duty of a father to contribute towards maintenance as distinct and independent from whether he has acquired parental rights and responsibilities by operation of section 21.

This case clarifies the proper interpretation of section 28 of the Children's Act 38 of 2005, establishing that parental responsibilities and rights are inseparably linked and must be suspended or terminated conjunctively, not disjunctively. It confirms that the Act's codification of parental power as a composite bundle of concomitant rights and obligations reflects the common law position. The judgment also provides guidance on how suspensions under section 28(1)(a) may be linked to future events (such as maintenance applications) to satisfy the requirement that suspensions be 'for a period', offering practical solutions for unmarried mothers who cannot locate absent fathers.