CHAPTER 5:08

GUARDIANSHIP OF MINORS ACT
Acts 34/1961, 43/1973, 42/1978, 19/1980, 29/1981 (s. 59), 39/1983 , 9/1997 (s. 10), 22/2001, 23/2001
(s. 49), (s. 4), 14/2002 (s. 5).

AN ACT to amend the law relating to the guardianship and custody of minors.
[Date of commencement: 30th June, 1961.]

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Short title
This Act may be cited as the Guardianship of Minors Act [Chapter 5:08].
Interpretation
In this Act—
“clerk of a children’s court” and “children’s court” shall have the meanings, respectively, given to them by
the Children’s Act [Chapter 5:06].
[Definition amended by section 49 of act 23 of 2001]

“Minister” means the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to whom the
President may, from time to time, assign the administration of this Act.
[Definition inserted by section 4 of Act 14/2002.]

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Duty of father to consult mother on question of guardianship of minor
Where the parents of a minor—
(a) are living together lawfully as husband and wife; or
(b) are divorced or are living apart and the sole guardianship of the minor has not been granted to either of
them by order of the High Court or a judge;
the rights of guardianship of the father shall be exercised in consultation with the mother, and if a decision of the
father on any matter relating to guardianship is contrary to her wishes and in her opinion likely to affect the life,
health or morals of the minor to his detriment, the mother may apply to a judge in chambers, who may make such
order in the matter as he thinks proper.
4 Guardianship and custody of minors
(1) The High Court or a judge thereof may—
(a) on the application of either parent of a minor in proceedings for divorce or judicial separation in which
an order for divorce or judicial separation is granted; or
(b) on the application of either parent of a minor whose parents are divorced or are living apart;
if it is proved that it would be in the interests of the minor to do so, grant to either parent the sole guardianship,
which shall include the power to consent to a marriage, or sole custody of the minor, or order that on the predecease of the parent named in the order, a person other than the survivor shall be the guardian of the minor, to the
exclusion of the survivor or otherwise.
(2) An order under subsection (1) granting the sole guardianship or custody of a minor whose parents are living apart to a parent shall, if the parents become reconciled and live together again as husband and wife, lapse
with effect from the date on which the parents commence to live together again.
(3) Subject to any order of court—
(a) a parent to whom the sole guardianship or custody of a minor has been granted under subsection (1)
may, by testamentary disposition, appoint any person to be the sole guardian or to be vested with the
sole custody of the minor, as the case may be;
(b) a parent who has the sole custody of a minor in terms of subsection (1) of section five or by virtue of any
order made in terms of that section may, by testamentary disposition, appoint any person to be vested
with the sole custody of the minor;
(c) the father of a minor to whom the sole guardianship of the minor has not been granted under subsection
(1) shall not be entitled by testamentary disposition to appoint any person as the guardian of the minor in
any other manner than to act jointly with the mother.
(4) Where the mother and a testamentary guardian of a minor act as joint guardians and they are unable to
agree on any question affecting the welfare of the minor, the wishes of the mother on that question shall prevail:
Provided that the testamentary guardian, if he is of the opinion that the life, health or morals of the minor may
be affected to his detriment, may apply to the High Court for directions, and the court may make such order
regarding the matters in difference as it may think proper.
(5) The High Court or a judge thereof may—
(a) where a parent has appointed a guardian or custodian as provided in paragraph (a) or (b) of subsection
(3); or

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