This dissertation looks at the position of the unmarried father in South Africa with regard to obtaining access to his illegitimate child. The writer has focused on three distinct eras in South African family law: the position of unmarried fathers in terms of: the common law; Natural Fathers of Children Born out of Wedlock Act; and the Children's Act. The writer has further focused on a case study. This is to emphasis the difficulty which unmarried fathers have when attempting to go through the courts to have access to his child. In terms of South African common law, fathers of illegitimate children did not have any form of parental authority over the child. The mothers of illegitimate children have full parental authority over such children. Access in terms of South African common-law is seen as an incident of parental authority. Unmarried fathers nevertheless had the right to approach the high court to obtain access to their children, if the mother of the child refuses to allow the father to have such access. In the late 1980's and early 1990's, there was an overwhelming amount of applications brought by unmarried fathers in the high courts so as to obtain access to their illegitimate children. The case of Van Erk v Holmer 1992 (2) SA 636 (W) sparked victory for unmarried fathers when the learned judge held that all unmarried fathers of children have an inherent right of access to their children. This victory was short-lived. Subsequent case law and in particular the case of B v S 1995 (3) SA 571 (A) enforced the common law and held that unmarried fathers do not have an automatic right to their illegitimate children and that such fathers will have to apply to the high court for such access. Due to the increase in litigation in the late 1980's and early 1990's regarding a father's access to his child born out of wedlock the Natural Fathers of Children Born out of Wedlock Act commenced on 4 September 1998. The South African legislature adopted the approach taken in the case of B v S 1995 (3) SA 571 (A) and rejected the approach taken in the case of Van Erk v Holmer 1992 (2) SA 636 (W) ie the common law continued to remain the approach taken in South Africa. Legislators recognised that the approach taken in the Natural Fathers of Children Born out of Wedlock Act does not conform to the provisions of the African Charter of the Rights and the Welfare of the Child, the United Nations Convention on the Rights of the Child and equality and dignity provisions of the Constitution of the Republic of South Africa. On 19 June 2006, the Children's Act was effected and will commence once promulgated in the Government Gazette. The writer then determines whether the Children's Act has in practice changed the position of the unmarried father. / JURISPRUDENCE / LLM

The legal historical development of fairness in the South African common law of contract is investigated in the context of the political, social and economic developments of the last four centuries. It emerges that the common law of contract is still dominated by the ideologies of individualism and economic liberalism which were imported from English law during the nineteenth century. Together with the theories of legal positivism and formalism which are closely related to parliamentary sovereignty and the classical rule of law, these ideals were transposed into the common law of contract through the classical model of contract law which emphasises freedom and sanctity of contract and promotes legal certainty. This approach resulted in the negation of the court’s equitable discretion and the limitation of good faith which sustain the social and economic inequalities that were created under colonialism and exacerbated under apartheid rule. In stark contrast, the modern human rights culture grounded in human dignity and aimed at the promotion of substantive equality led to the introduction of modern contract theory in other parts of the world. The introduction of the Constitution as grounded in human dignity and aimed at the achievement of substantive equality has resulted in a sophisticated jurisprudence on human dignity that reflects a harmonisation between its Western conception as based on Kantian dignity and ubuntu which provides an African understanding thereof. In this respect, ubuntu plays an important role in infusing the common law of contract with African values and in promoting substantive equality between contracting parties in line with modern contract theory. It is submitted that this approach to human dignity should result in the development of good faith into a substantive rule of the common law of contract which can be used to set aside an unfair contract term or the unfair enforcement thereof. / Private Law / LL. D.