and obedience to their orders, and also in case of improper behaviour to inflict such moderate chastisement as may tend to improvement. Parents may not be sued by their children without leave of the Court, termed venia agendi.[1] No marriage can be contracted by children without the consent of their parents. The parents are entitled on their decease to provide for the guardianship of their children.’[2]
Whatever is here said of children must be understood to refer to minor children, for in the Roman-Dutch law parental power ceases when the child attains full age.[3]
The incidents of the parental power described by Van der Linden may be developed as follows:
1. Custody and control; 1. Custody and Control. The custody, control, and education of children belong to the father, and after his death to the person named in his will.[4] Failing any such disposition the Court will appoint a fit person to act in this behalf, and in the absence of good cause to the contrary the mother will be preferred to remoter relatives or strangers. Remarriage is not in itself a ground of exclusion.[5]
2. Administration;
2. Administration. During the lifetime of both parents, and in the modern law until the father's death,[6] the management of a minor child's property belongs to the father, except so far as the person from whom such property is- ↑ In the Cape Province venia agendi is abrogated by disuse. Mare V. Mare (1910) C. P. D. 437.
- ↑ V. d. L. 1. 4. 1 (Juta's translation).
- ↑ V. d. L. 1. 4. 3. Full age is now fixed by law at the twenty-first birthday. Infra, p. 37.
- ↑ Voet, 27. 2. 1; Van Rooyen v. Werner (1892) 9 S. C. 425, where de Villiers C. J. reviews the whole subject of paternal and maternal rights. Semble, a surviving mother is now absolutely entitled to the custody unless the Court sees fit to direct otherwise.
- ↑ Voet, ubi sup.
- ↑ In the old law the father's natural guardianship did not survive the death of the mother. It was necessary for him to apply to the Court to be appointed guardian along with the guardian, if any, named in the will of his deceased spouse. Except in this capacity the surviving father had no competence either to represent his minor son in Court, or to administer his estate. Gr. 1. 7. 8–9; Voet, 26. 4. 4. Van der Keessel is to the same effect. Dictat. ad Gr. 1. 7. 8 (in fine). This can no longer be regarded as representing the law in South Africa. See Van Rooyen v. Werner, ubi sup. at p. 428, where de Villiers C.J. said: ‘As to the father, he is the natural guardian of his legitimate children until they attain majority.’
