GUARDIANSHIP, CUSTODY AND ACCESS: CURRENT DEFINITIONS AND INTERPRETATIONS OF THESE CONCEPTS

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CHAPTER 2 BRIEF OVERVIEW OF THE HISTORICAL BACKGROUND OF THE CONCEPTS GUARDIANSHIP, CUSTODY AND ACCESS

INTRODUCTION

Before studying the proposed changes to the current definitions of guardianship, custody and access, it is necessary to first explore the historical foundations of these terms. Roman law is far more than just a memory in South African law, but has been incorporated into Roman Dutch law, and Roman Dutch law forms the basis of the current South African law. It is important to realise that the nature of the parent-child relationship is determined by historical and social elements in the community1 and these must be explored in order to reach a greater understanding of the parent-child relationship. It is through remembering the past that we find a path to the future. In this chapter the historical developments of the concepts of guardianship, custody and access in South African law will be explored. Firstly, the Roman law will be studied. The periods of Roman law will be discussed briefly. Then the definition of a person in Roman law will be explained, after which the family relationship in Roman law and the Roman law concepts of guardianship, custody and access will be discussed. Secondly, the Roman Dutch law will be explored. A broad overview of the historical development of Roman Dutch law will be given. Then the family relationship in Roman Dutch law and the Roman Dutch law concepts of guardianship, custody and access will be discussed. Finally, the reception of Roman Dutch law in South Africa will be mentioned. The aim of this chapter is not to provide an in-depth historical analysis but rather a brief overview of the development of these concepts.

ROMAN LAW

Introduction

“Roman law was in force for approximately twelve hundred years and it is therefore, obvious, that during this period Roman law developed. Law is one of the products of a society and no society remains stagnant, but change and progress will always and everywhere take place, causing the legal system to adapt.”2
It is important to understand the development of Roman law within its historical context. Therefore, first a brief overview of the specific periods in Roman law will be provided. This will be followed by a discussion of the development of the concepts of guardianship, custody and access as well as an overview of the historical context within which these concepts occurred. Roman law can be divided into four periods, namely the Monarchy (753–509 BC), the Republic (509–27 BC), the Principate (27 BC – 284 AD) and the Dominate (284 AD).3

The periods4

The Monarchy (753–509 BC)

According to legend Rome was founded in 753 BC by Romulus. Rome was originally an agricultural community which was ruled by a king who had almost unlimited power. The king was advised by the Senate. The Senate consisted of the heads of aristocratic families.5 The community consisted of the gens (tribe) which was composed of related families. Later a smaller unit, the familia, became more important. The familia was headed by the parterfamilias who had extensive power6 over the other members of his family and was the family’s representative.7 During this period the law was influenced by religion and the main source of law was custom.8

The Republic (509–27 BC)

During this period the king was replaced by two magistrates or consules. Later other magistrates, with specific functions, were elected. The popular assembly and the Senate were also politically important.9 The magistrates were elected by the popular assembly and had the power to promulgate and enforce edicts.10 All male Roman citizens who had a vote had a seat in the popular assembly.11 During this time period early Roman law developed into an extensive legal system.12 However, Roman law was still mainly based on custom and not greatly influenced by legislation. The laws that the popular assemblies enacted were primarily political and did not really influence the development of private law.13 An exception was the Lex Duodecim Tabularum,14 which was passed in 450 BC.15 This law was drawn up due to the struggle between the two classes of Roman society, the plebeians and the patricians. The plebeians were upset that the knowledge of the law was confined to the priests, who were patricians. The Twelve Tables was essentially a “rather primitive codification of the customary law of the time”.16 This codification is, however, important as the Romans regarded it as the source of all public and private law.17 Other important sources of law during this period were resolutions of the Senate18 and the praetor. The praetor was an official entrusted with the administration of justice, who had the power to issue edicts.19

The Principate (27 BC – 284 AD)

During this time Rome had become a world power and the constitutional structure of the Republic was no longer suitable. The emperor became the leader of the Senate.20 Although the Senate had legislative power it was merely an instrument of the emperor and eventually the emperor assumed legislative powers.21 During the Principate “Roman law reached its highest glory”.22 This was as a result of the work of the jurists.23 During this period the main factors influencing Roman law were the praetor, the jurists and the emperor.24 Customary law as well as the law of the Twelve Tables still formed the basis of the law but the law was developed and expanded by the jurists and new law was created by the princeps.25 The influence of the praetor decreased with the increasing jurisdiction of the princeps and in 130 AD the praetorian edict was codified and the praetor had to abide by it.26 The jurists improved the law, by adapting it to the needs of the time.27

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The Dominate (284 AD)

In 284 AD the Principate was replaced by an absolute monarchy called the Dominate.28 The emperor was dominus et deus.29 The Roman empire was divided into the Western empire, with Rome as its capital, and the Eastern empire, with Byzantium (later called Constantinople) as its capital.30 The Western empire was overrun by Germanic invaders and fell in 476 AD.31 The eastern part of the empire fell under eastern cultural influence. The emperor Justinian, 527–565 AD, attempted to restore the glory of old Rome.32 All the power of the State was in the hands of the emperor. During this time the jurists still existed but they were employed by the emperor and not allowed to do any original work. The Senate had no power but was just a municipal governing body. The functions of the praetor had also ceased.33 The statutes created by the emperor were referred to as leges and the classical law was referred to as ius (or constitutes).34 During this period the law created was written in a long-winded style. The lawyers of this period could not cope with the mass of legislation or the works of the classical authors and many attempts were made to codify the leges and the works of the classical authors and to arrange the Roman laws into one whole.35 Justinian successfully codified the Roman laws and legal literature. Justinian’s code consisted of four parts: firstly, the Codex, which is a collection of imperial constitutiones; secondly, the Digesta, which contains fragments from the writings of the jurists, with changes to reflect the law of Justinian’s time; thirdly, the Institutiones, a textbook for students, mainly based on the Institutiones of Gaius; and lastly, the Novella, which consisted of leges which Justinian made during his lifetime. Justinian’s codification is known as the Corpus Iuris Civilis. Justinian’s codification caused knowledge of the Roman law to be carried to the rest of the world.36

The definition of a person

Before considering the concepts of guardianship, custody and access, it is necessary to determine who was considered a person under Roman law. “When the Romans used the word ‘person’ they meant exactly what the word means. The persona was the human being during his existence as a human being.”37 This did not mean that a person was “legally irrelevant before or after his death”.38 Protection was granted to the unborn39 and the law of succession protected the interests of a deceased person.40 Since the persona included every human being slaves were also persons.41
In Roman law the persona did not have to be the subject of rights but could also be the object of rights, just as a slave was.42 In Roman law:
“[e]very person in society has some status (condicio) before the law. Persons do not all have the same status, but in terms of several factors, a person may have more or fewer rights or no right at all compared with others”.43
A persona might act in a way that caused him to acquire rights or to have duties imposed upon him. Roman law called some of these actions acts in law, or negotio, because the law prescribed their contents and effects.44 The rights of a person in Roman law depended on factors such as whether a person was a slave or free, a citizen or not, a male or a female. Whether a person had the power to perform acts and what the effects of those acts were depended on whether they were performed by for example, a man or a woman or an adult or a child.

ABSTRACT 
KEYWORDS
ACKNOWLEDGEMENTS
CHAPTER 1 INTRODUCTION
1 1 THE CONTEXT
1 2 TERMINOLOGY
1 3 TRACING THE HISTORY AND DEVELOPMENT OF THE PARENT-CHILD RELATIONSHIP IN SOUTH AFRICAN LAW .
1 4 THE INFLUENCE OF THE CHILDREN’S RIGHTS MOVEMENT
1 5 THE VALUE OF COMPARATIVE LEGAL RESEARCH
1 6 CONCLUSION
CHAPTER 2 BRIEF OVERVIEW OF THE HISTORICAL BACKGROUND OF THE CONCEPTS GUARDIANSHIP, CUSTODY AND ACCESS
2 1 INTRODUCTION
2 2 ROMAN LAW
2 3 HISTORICAL DEVELOPMENT OF ROMAN DUTCH LAW
2 4 THE RECEPTION OF ROMAN DUTCH LAW IN SOUTH AFRICA
2 5 THE RECEPTION OF ENGLISH LAW
2 6 THE DEVELOPMENT OF SOUTH AFRICAN COMMON LAW
2 7 CONCLUSION
CHAPTER 3 GUARDIANSHIP, CUSTODY AND ACCESS: CURRENT DEFINITIONS AND INTERPRETATIONS OF THESE CONCEPTS
3 1 INTRODUCTION
3 2 GUARDIANSHIP
3 3 CUSTODY
3 4 ACCESS
3 5 THE BEST INTERESTS OF THE CHILD STANDARD
3 6 THE HIGH COURT AS UPPER GUARDIAN
3 7 LEGAL PRACTITIONER ASSIGNED TO THE CHILD
3 8 CONCLUSION
CHAPTER 4 CHANGES TO CURRENT LAW AND THE REASONS FOR THESE CHANGES
4 1 INTRODUCTION
4 2 THE SOUTH AFRICAN LAW REFORM COMMISSION
4 3 THE DRAFT CHILDREN’S BILL
4 4 THE CHILDREN’S ACT
4 5 DOES THE CHILDREN’S ACT COMPLY WITH THE PROVISIONS OF THE SOUTH AFRICAN CONSTITUTION AND INTERNATIONAL DOCUMENTS?
4 6 CONCLUSION
CHAPTER 5 COMPARATIVE LAW
5 1 INTRODUCTION
5 2 AFRICAN COUNTRIES
5 3 UNITED KINGDOM
5 4 CONCLUSION
CHAPTER 6 CONCLUSION
6 1 HISTORICAL OVERVIEW
6 2 PROVISIONS OF THE CHILDREN’S ACT
6 3 REASONS FOR THE REVOLUTIONARY CHANGE
ANNEXURE
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