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1
on: January 25, 2010, 02:10:49 PM
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| Started by muhammad - Last post by muhammad | ||
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Urgent Access to Child Urgent Access / Contact Applications Written by Advocate Muhammad Abduroaf (Advocate of the High Court of South Africa) Are you a father or mother of a child and the other parent refuses you access / contact with that child? It that is the case, you have a right to relief from the High Court. A couple would bring a child into this world. Whilst the relationship is ongoing, they can see eye to eye on what is best for the child and both parties forms a productive part of the child’s life. Even if the couple is not living together, the father would see the child regularly and bond with the child as is needed. However, once the relationship has severed, it often happens that the parties cannot see eye to eye on what is best for the child regarding regular contact by the father. The mother would either blatantly refuse the father access or would place strict measures on when and how the father can see the child. Should the mother refuse access or prescribe access to the child which is not in the child best interest, the father in this case would have grounds to urgently approach the High Court for relief. As the procedure is very complicate, it is strongly advised that you approach an attorney with knowledge and experience with these urgent applications. Furthermore, the attorney should have an advocate at hand to move the application with or without opposition at the High Court. The Procedure Your application is urgent and therefore it’s done on affidavit and not orally in Court. You may however be called to give oral evidence if the Judge so wishes to clarify certain issues. However this can mostly be avoided if you papers are properly drafted. Your Attorney or Advocate would draft a document called a “Notice of Motion” and “Founding Affidavit”. I will explain these documents to next. Notice of Motion In this document you state exactly what you want the Judge to grant you. Almost like the prayers in a summons. Of course you want the Judge to grant you reasonable access to your child. As you are making the application urgently and sidestepping some rules of Court regarding time periods and procedure, you would first ask the Court to condone non-compliance with its Rules. You will then ask the Court what relief you want usually in the form of an interim order to be finalised later. Usually you will ask for a rule nisi. An example of the prayers in an urgent access application is as follows: Condoning the Applicant's non-compliance with forms and service and time periods provided in the Uniform Rules of this Honorable Court and permitting this application to be entertained as a matter of urgency in terms of Rule 6(12) of the Rules of Court; That a Rule Nisi be issued, calling upon the Respondent to appear before Court on ____________________2010 at 10:00, in order to show cause why an Interim Order should not be confirmed in the following terms:- That the Applicant shall have unsupervised contact to the minor child as follows: every alternative weekend commencing from Friday 18:00 to Sunday 18:00; … That the provisions of (2) above shall operate as an Interim Order, with immediate effect, pending the return date of the Rule Nisi; … This document is signed by your attorney or you if you are acting in person. Founding Affidavit In your Founding Affidavit you provide relevant information under oath. Here you would provide details of you, the mother and the child. You would also need to provide information on a few or more of the following matters: Background information of your relationship with the mother of the child; Past access to the child; Past involvement in the child’s life; When access to the child seized / lessened and the circumstances surrounding it; Past maintenance or attempts to maintenance the child; Why the application is urgent and substantive redress in due course would not be afforded to you; and Any other relevant matter. Issue and Service of the Application Once the Notice of Motion and Founding Affidavit is in order, your attorney would make the necessary copies of the application and have it issued at Court and a case number would be provided. If possible, you would have the application served on the mother of the child timeously as well as on the Office of the Family Advocate. Here you may make use of the office of the Sheriff or your attorney would serve the papers on the mother. Opposition If the mother of the child opposes the relief sort after being served with the application, she should file an opposing affidavit to which you would have to reply. The parties would then have to argue the matter before the Judge. Urgent Hearing at the High Court If your matter has been set down on the Motion Court Roll, the Judge would have already ready over the papers filed and you would then wait for your matter to be called up. If your matter is to be heard before the Urgent Judge on duty that day, your Advocate would have to take the file to the Judge before hand to read. If the mother or her Advocate is present at Court and the parties cannot settle the matter, then they would have to argue before the Judge. If however the mother after having been duly served does not appear at court, then the process is a bit faster. After the judge decided on the matter, the following might happen: The Judge would grant the urgent relief requested; Grant you access but not on the terms as requested; Refuse to grant you any relief without a family advocate’s report; Dismiss your application for lack or merits and / or urgency. Success of the Application It is hard to predict the chances of success of your application without knowing exactly what the mother would say in her papers. However an experienced Advocate should be able to state based on what information is provided what the chances of success is. Kind regards, Advocate Muhammad Abduroaf (Cape Town | Western Cape) LL.B & LL.M (Master of Laws) Constitutional Litigation Advocate of the High Court of South Africa |
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on: January 25, 2010, 02:10:04 PM
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| Started by muhammad - Last post by muhammad | ||
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Sexual Offences in South Africa CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT OF 2007 (Act 32 of 2007) – An overview Written by Advocate Muhammad Abduroaf LL.B LL.M (Constitutional Litigation) On the 16th of December 2007, certain section of the Criminal Law (Sexual Offences and related matters) Amendment Act, 2007 (hereafter referred to as “the Act”), save for Chapter 5 and Chapter 6 therein, came effect. Chapter 5 came into effect on 21 March 2008 and Chapter 6 shall come into effect on 16 June 2008. Check the Government Gazette for other new legislation. Below is an overview of the Act. Seeing that I am dealing with sexual offences, I have decided not to provide a graphic explanation of the offences as it might be a bit disturbing. I have therefore limited myself to what the Act defines the offences to be and leave the rest to the reader. The Act is to amongst other things, comprehensively and extensively review and amend all aspects of the laws and the implementation of the laws relating to sexual offences in South Africa, and to deal with all legal aspects of or relating to sexual offences in a single statute, by— Repealing the common law offence of rape and replacing it with a new expanded statutory offence of rape, applicable to all forms of sexual penetration without consent, irrespective of gender; repealing the common law offence of indecent assault and replacing it with a new statutory offence of sexual assault, applicable to all forms of sexual violation without consent; creating new statutory offences relating to certain compelled acts of penetration or violation; eliminating the differentiation drawn between the age of consent for different consensual sexual acts and providing for special provisions relating to the prosecution and adjudication of consensual sexual acts between children older than 12 years but younger than 16 years; creating a duty to report sexual offences committed with or against children or persons who are mentally disabled; providing the South African Police Service with new investigative tools when investigating sexual offences or other offences involving the HIV status of the perpetrator; providing certain services to certain victims of sexual offences, amongst other things, to minimise or, as far as possible, eliminate secondary traumatisation, including affording a victim of certain sexual offences the right to require that the alleged perpetrator be tested for his or her HIV status and the right to receive Post Exposure Prophylaxis in certain circumstances; and establishing and regulating a National Register for Sex Offenders. Section 2 of the Act deals with its objects. According to this section, the objects of this Act are to afford complainants of sexual offences the maximum and least traumatising protection that the law can provide, to introduce measures which seek to enable the relevant organs of state to give full effect to the provisions of this Act and to combat and, ultimately, eradicate the relatively high incidence of sexual offences committed in the Republic. The Act further deals with various sexual offices which are found in its Chapter 2. Interesting note is the offence of Rape. According to the Act, any person ("A") who unlawfully and intentionally commits an act of sexual penetration with a complainant ("B"), without the consent of B, is guilty of the offence of rape. With regard to what is meant by sexual penetration, the Act defines it as follows: "sexual penetration" includes any act which causes penetration to any extent whatsoever by— (a) the genital organs of one person into or beyond the genital organs, anus, or mouth of another person; (b) any other part of the body of one person or, any object, including any part of the body of an animal, into or beyond the genital organs or anus of another person; or (c) the genital organs of an animal, into or beyond the mouth of another person. Chapter 2 further deals with various other sexual offences which are: Compelled rape; Sexual Assault; Compelled Sexual Assault; Compelled self – sexual Assault: Where a person ("A") who unlawfully and intentionally compels a complainant ("B"), without the consent of B, to— (a) engage in— (i) masturbation; (ii) any form of arousal or stimulation of a sexual nature of the female breasts; or (iii) sexually suggestive or lewd acts, with B himself or herself; (b) engage in any act which has or may have the effect of sexually arousing or sexually degrading B; or (c) cause B to penetrate in any manner whatsoever his or her own genital organs or anus. Compelling or causing persons 18 years or older to witness a sexual offences, sexual acts or self-masturbation; Exposure or display of or causing exposure or display of genital organs, anus or female breasts to persons 18 years or older ("flashing"); Exposure or display of or causing exposure or display of child pornography to persons 18 years or older; Engaging sexual services of persons 18 years or older; Incest; Bestiality; and Sexual act with corpse Chapter 3 of the Act deals with sexual offences against children. According to section 15 of Chapter 3, a person ("A") who commits an act of sexual penetration with a child ("B") is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual penetration with a child. This was referred to as “statutory rape” in the past. The definition of sexual penetration is provided above. According to the definition section of the Act, a child here refers to a person 12 years or older but under the age of 16 years. Section 16 deals with Acts of consensual sexual violation with certain children (statutory sexual assault). Here we again refer to children 12 years or older but under the age of 16 years. According to this section, a person ("A") who commits an act of sexual violation with a child ("B") is, despite the consent of B to the commission of such an act, is guilty of the offence of having committed an act of consensual sexual violation with a child. The Act defines sexual violation as follows: "sexual violation" includes any act which causes— (a) direct or indirect contact between the— (i) genital organs or anus of one person or, in the case of a female, her breasts, and any part of the body of another person or an animal, or any object, including any object resembling or representing the genital organs or anus of a person or an animal; (ii) mouth of one person and— (aa) the genital organs or anus of another person or, in the case of a female, her breasts; (bb) the mouth of another person; (cc) any other part of the body of another person, other than the genital organs or anus of that person or, in the case of a female, her breasts, which could— (aaa) be used in an act of sexual penetration; (bbbj cause sexual arousal or stimulation; or (ccc) be sexually aroused or stimulated thereby; or (dd) any object resembling the genital organs or anus of a person, and in the case of a female, her breasts, or an animal; or (iii) mouth of the complainant and the genital organs or anus of an animal; (b) the masturbation of one person by another person; or (c) the insertion of any object resembling or representing the genital organs of a person or animal, into or beyond the mouth of another person, but does not include an act of sexual penetration. However, with regard to a defence when charged in terms of section 16, it is a valid defence to such a charge to contend that both the accused persons were children and the age difference between them was not more than two years at the time of the alleged commission of the offence. Therefore, according to my interpretation, kissing of children who are between 12 years or older, but under the age of 16 years old and the age difference between them is more than two years at the time of the kissing, is a criminal offence. Chapter 3 of the Act further deals with the following offences: Sexual exploitation of children; Sexual grooming of children; Exposure or display of or causing exposure or display of child pornography or pornography to children; Using children for or benefiting from child pornography; Compelling or causing children to witness sexual offences, sexual acts or self-masturbation; and Exposure or display of or causing exposure or display of genital organs, anus or female breasts to children ("flashing"). The rest of the Act deals with the following: Chapter 4: Sexual offences against persons who are mentally disabled; Chapter 5: Services for victims of sexual offences and compulsory HIV Testing for Alleged Sex Offenders. Chapter 6: National Register for Sexual Offenders. This section shall come into effect on 16 June 2008; and Chapter 7: General Provision. On the whole, the Act is a very much needed piece of legislation in South Africa. Seeing that the Act is still new, it would be interesting to see how the court interprets its provisions. Kind regards, Advocate Muhammad Abduroaf (Cape Town | Western Cape) LL.B & LL.M (Master of Laws) Constitutional Litigation Advocate of the High Court of South Africa |
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3
on: January 25, 2010, 02:09:28 PM
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| Started by muhammad - Last post by muhammad | ||
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Non compliance with Maintenance Orders — Civil & Criminal By Adv. Muhammad Abduroaf Civil Execution Should the person against whom a maintenance order has been made not comply with it, such order can be enforced in respect of any amount which that person has so failed to pay together with any interest thereon— (1) by execution against property; (2) by the attachment of emoluments; and (3) by the attachment of any debt. The complainant must approach the maintenance court and make the necessary application. He or she would fill in a “Form K” which is headed “APPLICATION FOR ENFORCEMENT OF MAINTENANCE OR OTHER ORDER IN TERMS OF SECTION 26 OF THE MAINTENANCE ACT, 1998 (ACT No. 99 OF 1998)”. Once the form is filled in, the maintenance officer forwards the application to the magistrate who may issue the order. On the application you should write down all relevant information, including how the amount owed is calculated and the whereabouts of the defaulting party. It is advised that you go to court with proof that the monies were not paid. Therefore, if maintenance had to be paid into your bank account, take a printout of your bank statements with to show that monies were not paid. You must also state what relief you want as outlined above. Once your application is in order, and by way of example you asked for attachment of emoluments, an order may be made against the defaulter’s employer to the effect that he or she makes payment directly to you by deducting it from the defaulting party’s salary. If the defaulter is unemployed and has property, then the route to follow is to ask for the execution of property. This means that the property would be sold and what is owing to you would be paid to you. Criminal procedure It is a criminal offence not to adhere to a maintenance order and one can be convicted for that. You can be liable on conviction to a fine or to imprisonment for a period not exceeding one year or to such imprisonment without the option of a fine. Should the person against whom a maintenance order was made not comply with it, the party who should receive maintenance may approach the maintenance court and lay a criminal complaint. The complainant would fill in a “Form Q” headed “COMPLAINT OF FAILURE TO COMPLY WITH A MAINTENANCE ORDER FOR PURPOSES OF SECTION 31(1) OF THE MAINTENANCE ACT, 1998 (ACT No. 99 OF 1998)”. On the form you should state how the defaulter failed to comply with the order and also what amount is outstanding. Once you successfully laid your complaint, the maintenance court would subpoena the defaulter to the criminal courts. The defaulter has the right to legal representation prior to a trial date being arranged. Once a date has been arranged for trial you would be subpoenaed as a witness and give evidence as to the maintenance order, the outstanding amount that the defaulter failed to pay and anything else that is relevant. As the proceedings are criminal, the State would prosecute the defaulter and you would be their witness. Therefore, the public prosecutor would ask you questions and then the defaulter or his attorney or advocate will cross-examine you. If a foundation has been laid by the State, then the defaulter would get a chance to outline his defence to the court and the public persecutor would then cross-examine him or her. Should the court find the defaulter guilty, then on the request of the public prosecutor and in addition to or in lieu of any penalty which the court may have imposed grant an order for the recovery from the convicted person of any amount he or she has failed to pay in accordance with the maintenance order together with any interest thereon. Whereupon the order so granted shall have the effect of a civil judgment of the court. This means that the order may be used to sell the convicted person’s property. Kind regards, Advocate Muhammad Abduroaf (Cape Town | Western Cape) LL.B & LL.M (Master of Laws) Constitutional Litigation Advocate of the High Court of South Africa |
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4
on: January 25, 2010, 02:08:27 PM
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| Started by muhammad - Last post by muhammad | ||
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Divorce How to get Divorced Written by Adv. Muhammad Abduroaf (Advocate of the High Court of South Africa) If you want to get divorced from your spouse, I strongly advise that your approach a legal practitioner, or an attorney to attend to it on your behalf. This I would implore even more under the following circumstance: There will be a dispute over care and visitation rights over the child / children; One of the parties shall be applying for forfeiture of patrimonial benefits from a marriage in community of property; The joint estate is huge or complicated; or The other party shall be making use of legal representation. If however, you would like to know the general procedures on how to go about a divorce, they are listed summarily below. There are many rules that regulate divorce processes and the summary below does exclude certain of them. These includes exceptions, strikeouts, compelling compliance, service addresses etc. Other matters incidental to divorce proceedings, e.g. interim arrangements, pending the divorce regarding maintenance for you or your children and care and contact regarding children are not dealt with. Therefore please consult a legal practitioner or the divorce court throughout your divorce process should you decide to do the divorce yourself. Summons & Particulars of Claim A summons needs to be drafted which shall be issued by the divorce court to commence the divorce process. It should have on it the details of the court you shall be issuing divorce, details of the parties, e.g. names, occupation and address etc. Every High Court in the area where you live has the authority to attend to a divorce. There are however specialized divorce courts, that may attend to a divorce as well. Here in the Western Cape, we have the Southern Divorce Court. You should then draft a particulars of claim outlining relevant matters concerning the marriage, children, reasons for wanting a divorce and what do you want the court to grant you in a divorce order. This particulars of claim you attach to the summons. Here is an example of a summons and particulars of claim for a divorce for a couple married in community of property with no children getting divorce in the High Court in Cape Town. IN THE HIGH COURT OF SOUTH AFRICA CASE NO.: (Western Cape High Court, Cape Town) In the matter between: John Smith (Plaintiff) and Jane Smith (Defendant) To the Sheriff or his/her Deputy 1. INFORM Jane Smith (hereinafter referred to as “the Defendant”), an adult female, self-employed as a singer currently residing at 12 Club Road, Waterfront, Western Cape and whose full and further particulars are unknown, that: John Smith (hereafter referred to as “Plaintiff”), an adult male self employed painter residing at Garden Road, Cape Town, Western Cape, hereby institutes action against her in which action the Plaintiff claims the relief and on the grounds set out in the particulars annexed hereto marked “A”. 2. INFORM the Defendant further that if she disputes the claim and wishes to defend the action she shall – (a) within 10 (TEN) days after the service upon her of this Summons, file with the Registrar of this Court at Keerom Street , Cape Town a notice of her intention to defend, and serve a copy thereof on the Plaintiff, on which notice shall be given an address (not being a post office or poste restante) referred to in Rule 19(3) for the service upon the Defendant of all notices and documents in the action; and (b) thereafter, and within 21 (TWENTY ONE) court days after the filing and serving such notice of intention to defend as aforesaid, file with the Registrar and serve upon the Plaintiff a Plea, Exception, Notice to strike out, with or without a counterclaim. 3. INFORM the Defendant further that if she fails to file and serve notice as aforesaid, judgment as claimed may be given against her without further notice to her, or if having filed and served such notice, she fails to plead, except, make application to strike out or counterclaim, judgment may be given against her. 4. INFORM the Defendant also that if she does not intend to defend the action, she will inform the Registrar in writing to enable the Registrar to, on request in writing from Plaintiff, immediately set the matter down for hearing. AND IMMEDIATELY THEREAFTER serve on the Defendant a copy of this summons and return same with whatsoever you have done thereupon. DATED AT CAPE TOWN ON THIS THE DAY OF 2010. _________________________________ REGISTRAR OF THE HIGH COURT CAPE TOWN _____________________________ Per: John Smith (Plaintiff in Person) Service Address Particulars of Claim “A” (A) Parties Plaintiff is John Smith, an adult male Bus Driver, residing at no. 5 Truck Apartments, Cape Town, Western Cape. Defendant is Jane Smith (born Smit) an adult female, employed as a hairdresser, residing at Hectic House, 2 Main Road, Strand, Western Cape. (B) Marriage Plaintiff and Defendant (hereafter referred to together as “the Parties”) married each other on 10 August 2003 at Pretoria, in community of property and the marriage still subsists. Kindly find attached hereto a copy of the marriage certificate marked “MC”. The Parties are domiciled within the area of jurisdiction of this honourable court. There are no children born out of the marriage. (C) Irretrievable breakdown The marriage between the Parties has irretrievably broken down and there is no reasonable prospects of the restoration of a normal marital relationship between them in that: Defendant left the common home approximately 2 years ago; There is no love and affection, understanding and communication between the parties; The Parties are incompatible and continue arguing; and Plaintiff has a gambling problem. (D) Prayer WHEREFORE Plaintiff prays for Judgement against Defendant in the following terms: A decree of divorce; Each party retain the property in his or her possession as his or her sole property; Cost if this action is opposed; and Further and/ or alternative relief. DATED AT CAPE TOWN ON THIS THE DAY OF 2010. _____________________________ Per: John Smith (Plaintiff in Person) Service Address Once you have your summons and particulars of claim in order, you have to attach thereto revenue stamps. If you are issuing your summons out of the High Court, the stamps should be R 80— 00 and in the special divorce courts, R 20—00. Now you should make three (3) copies of your set of documents and have it issued at court. Issuing & Service of Summons Once you are at the court, go to the clerk of the court and have your documents issued. The clerk shall sign the summons and provide a case number and write it on the summons. You should then take the original and a copy (both must be signed and stamped by the clerk of the court) and take it to the sheriff which serves documents where your spouse works of lives. You can ask the clerk of the court for that details. The extra—copy of the summons & particulars of claim you keep for your file and records. Notice of intention to defend Once the sheriff has served the documents, your spouse has about two weeks to inform your whether he or she shall be defending the divorce. This information is outlined in the summons as shown above. Plea to particulars of claim Once you received notice of your spouse’s intention to defend the divorce, about a months later, your spouse or their attorney shall serve and file a plea. The plea shall outlined which parts of your particulars of claim your spouse agrees (or disagree) with which would give a direction of what to prove at court. Counter Claim Your spouse might want to file a counter claim. In the same way which you outlined your case as to what you want from the court and the reasons therefore in your particulars of claim, your spouse can file on your as well a counter claim. A counter claim might still be filed if your spouse agrees to a divorce, by maybe wants care of the children, but in your particulars of claim, you asked for care. You should then within 10 (ten) days plead to the counter claim the same manner in which you spouse pleaded to your particulars of claim. Obtaining a Trial date Once you received the plea, without a counter claim, or have pleaded to your spouses counter claim , you should then approach the clerk of the court for a trial date. This you or your spouse may do. Discovery While you waiting for a trial date, and way before the trial, you may ask, or may be asked to provide a under oath a schedule of books and documents in your possession and under your control relating to the divorce. This could be policy documents, deeds etc, and which your or your spouse might want to make use of at trial. Once you received this schedules you may inspect and request copies of the documents. Divorce day / Trial If your spouse does not defend the divorce within the time period, go back to court and ask for an unopposed divorce date and attend to your divorce on that date. If however your divorce is defended, a trial shall ensure. During the trial, each party shall prove his or her case. Witnesses shall be called and at the end, the Magistrate or Judge shall deliver the verdict. Best of luck, and please, don't take my word, contact a legal practitioner should you decide to get divorced. Kind regards, Advocate Muhammad Abduroaf (Cape Town | Western Cape) LL.B & LL.M (Master of Laws) Constitutional Litigation Advocate of the High Court of South Africa |
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on: January 25, 2010, 02:07:45 PM
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| Started by muhammad - Last post by muhammad | ||
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Domestic Violence ABC GUIDE TO OBTAIN A PROTECTION ORDER Written by Advocate Muhammad Abduroaf LL.B LL.M (Advocate of the High Court of South Africa) The Steps to be followed to obtain a Protection Order in domestic violence situations are regulated by the Domestic Violence Act 116 of 1998 (hereafter referred to as “the Act”). I strongly suggest that you consult an attorney, advocate or family lawyer should your matter be complicated. Below is a simple A B C guide outlining a few simple steps that a complainant (the person affected by domestic violence) has to follow in order to obtain an interdict (Protection Order) against a person. However before these steps may be laid down, it’s important to know whether you should approach the Domestic Violence Court or the South African Police Services for a Peace Order: Speak to them about it. Q: What is a Protection Order? A: In simple terms, a protection order is an order granted by the Domestic Violence Court which prohibits the person whom the order was made against to commit any acts of domestic violence against you. Furthermore, a Court might grant you an interim Protection Order with basically the same effect as a Protection Order which will be finalised later. Q: Who my approach the Domestic Violence Court? A: In order to approach the Domestic Violence Court you have to be a “complainant" as described by the Act. According to the Act, such a person is someone who is or has been in a domestic relationship with a respondent (the person committing the domestic violence) and who is or has been subjected or allegedly subjected to an act of domestic violence, including any child in the care of the complainant. So therefore the next question is what is a domestic relationship? Q: What is a “domestic relationship”? A: According to the Act, a "domestic relationship" means a relationship between a complainant and a respondent in any of the following ways: (a) they are or were married to each other, including marriage according to any law, custom or religion; (b) they live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other; (c) they are the parents of a child or are persons who have or had parental responsibility for that child (whether or not at the same time); (d) they are family members related by consanguinity, affinity or adoption; (e) they are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or (f) they share or recently shared the same residence. Now the last question is, what is domestic violence? Q: What is a domestic violence? A: According to the Act, domestic violence" means- (a) physical abuse; (b) sexual abuse; (c) emotional, verbal and psychological abuse; (d) economic abuse; (e) intimidation; (f) harassment; (g) stalking; (h) damage to property; (i) entry into the complainant's residence without consent, where the parties do not share the same residence; or (j) any other controlling or abusive behaviour towards a complainant. Therefore, if you are experiencing domestic violence, the following simple steps have to be followed in getting you started… Step 1 … Write on a page all the incidents of domestic violence done to you or to your children on paper. Be very clear with names of people, dates and times. Take your time as this information you shall have to fill onto a form at Court which is dealt with in step 2 below. Tip: If you fill in the form at Court without first making a draft to work from at your convenience, you might be so nervous at Court and leave out valuable information. Find out all the details of the person whom you want to be protected against from domestic violence, e.g. his/her home and work address and identity number etc. Step 2 … Go to the Domestic Violence Court closes to your area and the Clerk of the Court will give you a form to fill in. The form is referred to as an “Application for Protection Order” form. Use the information you have gathered in Step 1 and fill in the form. The form is in the form of an affidavit and you therefore have to swear to the correctness of the information under oath and sign. Therefore do not hide any information from the Court or exaggerate. Caution: If your information is not 100 % correct, you may be cross-examined on such correctness in Court and if it is found that you were not totally honest, this would not be in your favour. · If you require any assistance in filling in the form, the Clerks of the Court would be happy to assist you. · Once you have filled in the Application for Protection Order form, return it to the Clerk who will have it commissioned. · The Clerk of the Court would then take the completed documents to a Magistrate who would read through it and might want to speak to you as well. The Court will then do one of 3 things: (a) Dismiss your application if there is no evidence that domestic violence is taking place. (b) Grant you an Interim Protection Order which will be finalised on a date provided by the Court where the Respondent will have a chance to give his / her side of the story; or (c) Postpone the matter without granting an Interim Protection Order and provide a date where the Respondent will get a chance to give his / her side of the story. PLEASE NOTE: An Interim Protection Order has no force and effect until is has been served on the Respondent as in step 3 below. So do not waste time in getting it served. Step 3… · Now the Respondent has to be informed about the application to Court and the date which both of you have to be back at Court. Depending on the Court, the Clerk of the Court might give you the necessary documents to drop at the Police Station or Sheriff’s Office operating where the Respondent lives or works in order to have it served on the Respondent. Make sure that you receive proof from the officer serving the documents on the Respondent that he has done so. Hint: The South African Police Services does not charge to serve these documents but the Sheriff does. · If the Respondent commits any acts of domestic violence towards you, report the matter immediately to the Police and if there is no Interim Protection in place, go immediately back to the Domestic Violence Court and state your case in order to get one. · Go back to Court on the date provided and state your case. If there are grounds, the Court shall grant you a Protection Order. If you have a Protection Order against you, it is possible to have it varied or set aside. Consult the Court, your Attorney, Advocate or Family Lawyer in this regard. Kind regards, Advocate Muhammad Abduroaf (Cape Town | Western Cape) LL.B & LL.M (Master of Laws) Constitutional Litigation Advocate of the High Court of South Africa |
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6
on: January 25, 2010, 02:07:05 PM
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| Started by muhammad - Last post by muhammad | ||
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The Children's Act About the Children’s Act 38 of 2005 Written by Adv. Muhammad Abduroaf (Advocate of the High Court of South Africa) What are the rights of unmarried fathers? Do I as a father of a child born out of wedlock have rights. Do I as a father of a child born in terms of a religious marriage have rights? In my view, unmarried fathers always experienced difficulties regarding access to their children if they were separated from the mother. What is even worse, is if a couple was married in terms of religion or custom, and not civilly (e.g.) in Court, and the parties separated, where the “unmarried” father’s position would be the same as that of an unmarried father who was never married to the mother religiously or customary. However, if a party was married civilly and divorced, the Divorce Court in the past would deal with the issue of care and contact. The usual phrase used was that the mother would have custody over the child, with the father having rights of reasonable access. The position has however improved with the inception of the Children’s Act 38 of 2005 for both divorced and unmarried fathers. As outlined below, an unmarried father would have rights over a child, akin to a divorced father as long as certain conditions are met. However, in my view, based on the custody and contact matters I dealt with since the inception of the Act, mothers are still seen as primary caregivers in practice, and if the mother does not want the father to have contact or care with the child or a say in his or her life, the father would still has to follow the procedures in the Act to give effect to his rights. Sometimes, approaching the High Court is the only solution. However, on the whole, the Child’s Act 38 of 2005, is a step in the proper direction for unmarried fathers, and child born out of wedlock. I hope it would improve even more. Certain section of the Children’s Act (Act 38 of 2005) came into effect with a proclamation (13, 2007) by the President of South Africa in June 2007. The Children’s Act of 2005 brought many changes regarding the responsibilities and rights of parents and children and also deals with other aspect regarding children, e.g. contraceptives and abortion etc. Interesting to note are the following sections listed below, there are however others depending on your issues. Parental responsibilities and rights Section 18 of the Children’s Act of 38 2005 states the following: 18. (1) A person may have either full or specific parental responsibilities and rights in respect of a child. (2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right- (a) to care for the child; (b) to maintain contact with the child; (c) to act as guardian of the child; and (d) to contribute to the maintenance of the child. (3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must— (a) administer and safeguard the child’s property and property interests; (b) assist or represent the child in administrative, contractual and other legal matters; or (c) give or refuse any consent required by law in respect of the child, including- (i) consent to the child’s marriage; (ii) consent to the child’s adoption; (iii) consent to the child’s departure or removal from the Republic; (iv) consent to the child’s application for a passport; and (v) consent to the alienation or encumbrance of any immovable property of the child. (4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship. (5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c). I shall now deal with what the Children’s Act of 2005 says the meaning of “care” and “contact” are, which are not the traditional words used in the past. In the past, the courts and the legal fraternity used the terms “custody” and “access”. This would reflect in divorce papers. Now legal documents uses the terms “care” and “contact”. Although some might disagree, it is respectfully submitted that “custody” is an aspect of “care” and the Children’s Act provides broader responsibilities and rights in this regard. Meaning of Care The Children’s Act 38 of 2005 defines “care” as follows: “care”, in relation to a child, includes, where appropriate- (a) within available means, providing the child with- (i) a suitable place to live; (ii) living conditions that are conducive to the child’s health, well-being and development; and (iii) the necessary financial support; (b) safeguarding and promoting the well-being of the child; (c) protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards; (d) respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child’s rights set out in the Bill of Rights and the principles set out in Chapter 2 of this Act; (e) guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development; guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development; (g) guiding the behaviour of the child in a humane manner; (h) maintaining a sound relationship with the child; (i) accommodating any special needs that the child may have; and (j) generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child; Contact According to the Children’s Act 38 of 2005, “contact” means the following: “contact”, in relation to a child, means- (a) maintaining a personal relationship with the child; and (b) if the child lives with someone else- (i) communication on a regular basis with the child in person, including- (aa) visiting the child; or (bb) being visited by the child; or (ii) communication on a regular basis with the child in any other manner, including- (aa) through the post; or (bb) by telephone or any other form of electronic communication; It is my view that a the Children’s Act 38 of 2005 attempts to place greater value to contact between parent and child. There are many sections in the Children’s Act 38 of 2005 that deals with parental responsibilities and rights of parents and children. Get hold of the Act and see how it applies to you. If you are an unmarried father and your rights are being limited by the mother of the child, I advise you to contact a family attorney and discuss your rights with him or her. And to all unmarried fathers out there, fight for your rights as a father, this would be in the child’s best interest. Kind regards, Advocate Muhammad Abduroaf (Cape Town | Western Cape) LL.B & LL.M (Master of Laws) Constitutional Litigation Advocate of the High Court of South Africa |
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on: January 25, 2010, 02:06:27 PM
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Child Maintenance Amount How much child support / maintenance should you claim / pay? Written by Adv. Muhammad Abduroaf (Advocate of the High Court of South Africa) It is not only mothers who wants to know how much maintenance they should claim, but fathers are very much interested in wanting to know how much they should pay. It is my view that there is nothing wrong with a father wanting to know whether or not he is paying too much maintenance as it is both parents responsibility to maintain a child. However I do have issue with fathers who tries to avoid their maintenance obligations and mother who wants to exploit the fathers. How much child support / child maintenance should I claim for my child / children? How much child support / child maintenance should I pay for my child / children? The above are two questions which are posed to me all too often. But what is the answer, or, what do I answer? Below I provide you with certain factors I use to determine the amount of child support / child maintenance my client should claim or pay when dealing with a child support / maintenance matter. There are however many factors, and although they may sometimes overlap depending on the situation, it does not mean they will be the same for everyone. Remember, the explanation below is provided for information purposes only. You or your attorney or advocate might have one view on what the amount should be, however the opposition or the maintenance court might have a total different view. I therefore strongly advise that you first consult with a maintenance lawyer or advocate, or the maintenance court before submitting your amount. In complicated cases, an advocate may be approached by your attorney for an opinion. The golden rule: The child’s best interest is the determining factor when it comes to child support / child maintenance amount. However, it is not as easy as saying that the child needs to have the best of clothes, education, food etc available. By taking this view, it would be as saying that during the parents’ marriage, the child has to go to the best school in the area, wear the best of clothes and eat the best of food notwithstanding the parents earning a far below average income. Such a legal approach would be nonsensical. Each case is determined on its own merits by weighing the factors. Factors which are weighed, amongst other are: The standard of living the child was accustomed to while the parties were married or lived together; The earning capacity of the Parents; and The Assets of the parents. Therefore, it does not mean every child of 5 years old will require a child support / child maintenance contribution of R 500—00 (five hundred rand). A contribution of R 500—00 for one 5 year old child might be reasonable or even too high, depending on the circumstances. Let me provide you with two scenarios: Scenarios A: A 5 year old child’s parents earned R 500—00 per month each and they were bringing up the child perfectly under the circumstance with their modest standard of living which is the norm in the area they live in, and further, the standard they were accustomed to when they were brought up. If they are to estimate the costs of the child, it would be about R 200—00 per month which goes to food, shelter, clothes etc. Should the parents separate, and, lets say in this case, the mother claim maintenance from the father for the child, she would not have a case for more than R 150—00 maintenance per month. You might wonder why I don't say R 100—00 per month seeing that the parents earned the same salary? Obviously now the mother would have to find alternative accommodation etc. and therefore the child’s portion would be more (it could even be less). Scenarios B: However, lets say the parents of a 5 year old child each earns R 50 000—00 per month. The child has an au pair, own room, policies in his / her favor, expensive clothes, medical aid, expensive creams, attends ballet and violin classes etc. The costs of the child is about R 25 000—00 per month. Should the parents separate, a claim for maintenance could easy be in the region of R 15 000—00. R 14 850—00 more than the 5 year old child in scenario A above. It all depends on the facts, circumstances etc. To make thing more complicated, if the mother in this scenario have assets worth millions and the father only owns a car of R 100 000—00, his contribution could be far less than R 15 000—00. It is even possible that his contribution could be R 150—00 (and not R 15 000—00) as in the case of scenario A. All these factors have to be discussed with your maintenance lawyer or advocate. I hope this gave you a feel on how child support / child maintenance is calculated. Therefore in answering the questions posed above, i.e. How much child support / child maintenance should you claim for you child / children, and how much child support / child maintenance should you pay for you child / children? The answer is … it depends on the facts. Kind regards, Advocate Muhammad Abduroaf (Cape Town | Western Cape) LL.B & LL.M (Master of Laws) Constitutional Litigation Advocate of the High Court of South Africa |
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on: January 25, 2010, 02:05:38 PM
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Child Maintenance ABC GUIDE TO APPLYING FOR CHILD SUPPORT / CHILD MAINTENANCE Written by Advocate Muhammad Abduroaf LL.B LL.M (Advocate of the High Court of South Africa) The procedures to be followed in instituting a complaint for child maintenance are regulated by the Maintenance Act 99 of 1998. Below is a simple “ABC” guide to get you started in claiming maintenance for yourself, your children or dependants. This I wrote in order to encourage people to claim needed maintenance for their children or for themselves. Remember, the Maintenance Court would be more than happy to assist you with whatever other legal queries you may have. Before I deal with the simple steps that should be followed in claiming maintenance, I shall first deal with the following question: Q: From whom may maintenance be claimed? A: Maintenance may be claimed from persons who have a legal obligation to maintain you. For instance children can claim maintenance from their parents or a wife from her husband and visa versa. Seeing that children are minors, they are assisted by their parent or guardian through the maintenance process, but in actual fact it is the child who is claiming. For the purposes of the steps below, I shall structure it as if a parent or guardian is claiming maintenance on behalf of the child. Step 1 … Get hold of all your proof of income. E.g. pay slips. If you are not working for an employer, you should get hold of proof that you earn a certain amount of money per month. If you are unemployed, that is in order. Get together a list of all monthly expenses incurred for yourself and your children. This would include rent, groceries, clothes, entertainment etc. This information is required when filling in the maintenance application form that is dealt with in Step 2 below. Find out all the details of the person from whom you are requesting maintenance from, e.g. his/her home and work address and identity number. Step 2 … Go to the Maintenance Court closes to your area and obtain an “Application for Maintenance Order Form” also referred to as “Form A”. Use the information you have gathered in Step 1 and fill in the form. The form is in the form of an affidavit and you therefore have to swear to the correctness of the information under oath and sign. Therefore do not hide any information for the Court. Caution: If your information is not 100 % correct, you may be cross-examined on such correctness in Court and if it is found that you were not totally honest, this would not be in your favour. If you require any assistance in filling in the form, the maintenance officers would be happy to assist you. Once you have filled in the Application for Maintenance Order Form, return it to the maintenance officer who will process it for you. If the maintenance officer can provide you with a reference/case number there and then, request it. The Maintenance Court will send you and the person you are claiming maintenance from a letter or subpoena to appear at the Maintenance Court for an inquiry with the maintenance officer. Diarise the date immediately and make arrangements with your work and a babysitter as soon as possible. If you miss the date, it can take months to get another. Step 3… From the time you left the office of the maintenance officer and even from the time you decided to claim maintenance, keep all receipts you received for any items bought for you and your child. Therefore, if you buy nappies for your child or even a toy, keep that receipt as if it is gold. This is due to you having to prove to the court that you really do spend money on the child and you have the receipts to prove it. You will soon hear from the Maintenance Court where they will be giving you a date to appear back at the Maintenance Court for an inquiry. They would either inform you by post or by a subpoena. On that date both you and the person from whom maintenance is claimed would have to appear. If you are planning on making use of a legal representative, inform him/her early about the date so that he/she can be available to assist your at Court. In the notice to appear for the maintenance enquiry it is requested that you bring proof of all expenses and income for you and your child. This is why it is so very important for you to keep all proof of expenditure in a safe place. Hint: If you can afford to, bring original proof of expenditure and income and a photocopy thereof. The original you would then be able to take back home and bring it back when requested and the copy will stay in the Court file. Step 4 … This step deals with the maintenance enquiry where you and the person from whom you are claiming maintenance from will appear before a maintenance officer. The maintenance officer will speak to each of the parties and look at the documents provided. Each party will get a chance to explain why he/she requires maintenance and also why he/she can’t afford the maintenance requested. The maintenance officer will as far as possible try to resolve the matter there and then without it having to go to court. If the parties can agree to an amount, this amount can be made an order of court. If however an agreement cannot be reached at this stage, the matter, depending on the Court will either be referred to a prosecutor or for trial. Remember, if you are a father or a person currently paying maintenance / child support, a reduction is possible. The same goes for an application for an increase in maintenance / child support. Kind regards, Advocate Muhammad Abduroaf (Cape Town | Western Cape) LL.B & LL.M (Master of Laws) Constitutional Litigation Advocate of the High Court of South Africa |
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on: January 25, 2010, 02:04:59 PM
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Changing your matrimonial property regime from In Community of Property to Out of Community of Property Are you married “In Community of Property” and want to change your matrimonial property regime to “Out of Community of Property”? Did you not know that a marriage Out of Community of Property was possible when getting married? There is relief for you and your spouse. All civil marriages are automatically In Community of Property meaning that there is one estate shared between wife and husband. Therefore, if any one of the spouses incurs a debt, that debt belongs to both of them. The other option is to get married Out of Community of Property. This means that there are two separate estates and each party is responsible for his or her own debt. For some people this would be a better option, especially if you are a business person. The usual process to be married Out of Community of Property is to enter into an ante nuptial contract before the marriage. The contract will have clauses in it stating: That there shall be no community of property; That there shall be no community of profit or loss; and That the accrual system provided for in Chapter 1 of the Matrimonial Property Act, no 88 of 1984 is expressly excluded from the marriage. However, if you did not do so, there is a way of changing your matrimonial property regime from In Community of Property to Out of Community of Property. For this, you need the consent of the High Court. Here you will make use of section 21 of the Matrimonial Property Act 88 of 1984. Getting the High Court’s Consent Once you and your spouse have decided to change your matrimonial property regime to Out of Community of Property, you would need to approach the High Court in your area for consent. If you know the law, legal process, Court rules and procedure, you and your spouse can do it on your own. If you cannot do it on your own, an attorney would be able to do it for you with or without the assistance of an Advocate. What they do is draft a post-nuptial contract for you which would outline what matrimonial property regime you want and also how the joint estate should be divided. Then they draft a Notice of Motion (notifying the Court what you want) and Founding Affidavit (your affidavit outlining your case etc.). Your case must satisfy the Court that: there are sound reasons for the proposed change of the matrimonial property regime; there has been sufficient notice to creditors regarding the proposed change; no other person will be prejudiced by the proposed change. If however you cannot make a case for the above, your application may be unsuccessful. Costs involved in changing your matrimonial property regime As stated, you have to approach the High Court for consent to change your matrimonial property regime. There would therefore be costs of an attorney who may instruct and advocate, and further costs in drafting and registration of the post nuptial contract. Furthermore there is advertisement cost involved as you would have to give notice in the Government Gazette and in one or two local newspapers. You would further have to serve your application on the Registrar of Deeds and give notice to your creditors via registered mail. The total costs may range from R 15 000 – 00 should your matter be straight forward to R 20 000 – 00 should it be more complicated. Complicated would mean the joint estate has many creditors and further, there may be many assets in the joint estate that needs to be divided, especially if they are not easily describable. The above mentioned fee is obviously dependant on your application not being opposed by any interested party. One reason for opposing the application could be that the Joint Estate is deeply indebted to a creditor and she feels that her claim would be prejudiced by the proposed change. Should your application be opposed for any reason, many more hours will be spent fighting for the success of your application which could costs you a small fortune and you may even be ultimately unsuccessful. Therefore, you would need to advise your legal team of all relevant facts before the application is made. Time estimates The estimated time in preparing your application, your post nuptial contract and ultimately obtaining consent from the High Court is about 4 weeks. This is also dependent on whether or not the High Court is in sitting within 4 weeks after the drafting of you application. If the High Court is in recess, a few extra weeks may apply. The Court may also want a report from the Registrar of Deeds which could cause delays. Once your application is successful and the High Court therefore gave consent, you will usually have 3 (three) months to register the post nuptial contract. So once consent is granted, you need to see a Notary Public before whom you will sign your post nuptial contract and then have it registered. This therefore needs to be done within the three months of obtaining the consent of the High Court. If you would like to be referred to an attorney to assist you in changing your matrimonial property regime, feel free to send and email by clicking here (info@ourlawyer.co.za). Kind regards, Advocate Muhammad Abduroaf (Cape Town | Western Cape) LL.B & LL.M (Master of Laws) Constitutional Litigation Advocate of the High Court of South Africa |
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on: January 25, 2010, 02:03:41 PM
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Parental Responsibilities & Rights Care & Contact (Custody & Access) Written by Advocate Muhammad Abduroaf LL.B LL.M (Advocate of the High Court of South Africa) (This section relates to an application being made in Cape Town (Western Cape High Court). Attorneys and Advocates in Jurisdiction of Courts outside Cape Town may follow a slightly different format. ) In the past, the terms Custody and Access was used in relation to children. Now the terms Care and Contact are used and you will see the term Visitation coming up as well. In terms of the Children’s Act of 2005, both parents (with certain exceptions) have full parental rights and responsibilities in relation to a child. If there is a dispute regarding that, or the mother refuses access etc, then the father may have to make an application to the High Court confirming his responsibilities and rights and enforcing them. This can turn out to be a costly affair. If however a father has to take that route, it is strongly suggested that he gets hold of an attorney who may instruct an advocate. A Notice of Motion would be drafted with a Founding Affidavit and other supporting affidavits. The documents would further be filed with the Office of the Family Advocate. Once the Application is served on the mother, she would then have an opportunity to file her opposing papers (if any) and the father will then have an opportunity to reply. Once a date is provided by the Registrar of the Court, the matter would be argued before a Judge who would make a decision with or without a Family Advocate’s Report. Urgent applications can also be made, but here an experienced attorney and advocate is required as time is of the essence. What the father would basically be asking for is the following: An Order directing that the parties (mother and father) are co-holders of parental responsibilities and rights in respect of the minor child, in terms of the Children’s Act, 38 of 2005 (“the Children’s Act”) as follows: the parties are co-holders of guardianship over the minor child as provided in Section 18(2(c); 18(3); 18(4) and 18(5) of the Children’s Act; the parties shall be co-holders of parental responsibilities and rights of care and contact in respect of the minor child as referred to in Section 18(2)(a) and (b) of the Children’s Act; and How such rights of care and contact shall be implemented. Kind regards, Advocate Muhammad Abduroaf (Cape Town | Western Cape) LL.B & LL.M (Master of Laws) Constitutional Litigation Advocate of the High Court of South Africa If you are a father and would like to have access to your child, feel free to contact us and we can refer you to an attorney for assistance. Send us an email by clicking here. Our Lawyer | South Africa |
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