Pastor Mboro saga puts custody rights in the spotlight

The incident involving the storming of a primary school by a panga-wielding religious leader has put custody rights firmly in the spotlight.

Paseka 'Mboro' Motsoeneng forcibly took two minor children from the premises on Monday.

Mboro case postponed to next week

It's reported that Motsoeneng is their grandfather, and there has been a custody battle over the two since their mother passed away.

His Incredible Happenings church was set on fire the day after the traumatic incident at the school.

John Perlman interviews a legal expert to find out how the law works in South Africa when it comes to disputes over minor children.

Nthabiseng Dubazana, owner of Dubaznana Attorneys, clarifies that the term 'custody' is not used officially.

In South Africa it's called 'parental rights and responsibility', she says.

Dubazana explains the different categories when it comes to recognising fathers in terms of the Children's Act.

"In terms of Section 21, a father who becomes a father by conception and that happened whilst the couple was not married, does not have what we call automatic rights and responsibilities to the minor child."

"And according to Section 20, fathers who were in a marriage at the time of conception are automatically deemed to have the rights and responsibilities."

"If there wasn't a marriage, when the dad now makes an application perhaps through the courts for access to the minor, he could be recognised that way... or if they had an amicable break-up and he's on the birth certificate, he can be deemed the father."

Nthabiseng Dubazana, Owner - Dubazana Attorneys

The situation can become more complicated in the case of death.

If the mother for instance passes away, the recognised father automatically acquires these rights, and vice versa.

The grey area comes in when both of the parents die, Dubazana says.

In this case, both the paternal and maternal grandparents may make an application to be guardians for the minor child, as they don't have the automatic right.

"That's why I encourage people that, while you're still alive, please deal with the issues pertaining to your estate which includes your children... so that in the event that you pass while your children are under the age of 18, a guardian can be appointed to that effect."

Nthabiseng Dubazana, Owner - Dubazana Attorneys