Invloed van die begrip kinderregte op die privaatregtelike ouer-kind verhouding in die Suid-Afrikaanse reg

[摘要] ENGLISH ABSTRACT: The thesis investigates the effect of the recognition of the rights of the child on theparent-child relationship in private law. Rights of the child seem, on the face of it, toundermine parental authority and family values. The impression is created that thestate is abdicating its role as protector of the child in favour of unfettered freedom ofthe child. The delicate balance between individual freedom and family autonomymay in the result also be under threat. It was, therefore, necessary to extend theinvestigation to include the role of parents and that of the state.The study is divided into three parts. The first contains a theoretical analysis of theconcept rights of the child. It is clear that the concept is a manifestation offundamental human rights. The rights of the child are unique in nature andaccommodate the changing phases of dependence and developing abilities of thechild. Theoretical analysis negates the perception that the recognition of the rights ofthe child contributes to erosion of the family: the importance of the commitment ofparents and of the state is apparent.The second part consists of a comprehensive review of the parent-child relationship inthe South African private law, and an analysis of the public law dimension of theconcept rights of the child. This part of the investigation demonstrates that parentalauthority is firmly rooted in legal history and that substantive private law does notrecognise the child as bearer of rights within the context of the family. However, theBill of Rights and the 1989 United Nations Convention on the Rights of the Childunequivocally give public law status to the child as bearer of rights. The study showsthat the private and public law status of a child cannot be isolated from one anotherand that adaptations will have to be made to implement the rights of the child.In the third part of the study an attempt is made to identify the kind of adaptation thatmust be made. The impact of the idea of the rights of the child upon the parent-childrelationship in private law is investigated. Australian and Scottish law are examplesof legal systems which endeavour to implement fully the concept of the rights of thechild. Indigenous law places a high value on human dignity. The interaction betweenrights and duties in indigenous systems reflect values which are inherent in the ideaof the rights of the child.The study shows that the impact of the rights of the child on the parent-childrelationship is such that change and adaptation of private law is necessary. Changeand adaptation are required at both theoretical and practical level. A number ofobstacles which may inhibit the process of change are identified. Finally, the kind ofchange and adaptation required is illustrated by a number of practical examples of theimpact ofchange on the parent-child relationship.

[发布机构] Stellenbosch University