Family Law matter and legal representation by attorneys or advocates. What are common questions asked?

What follows are some  frequently asked questions regarding legal representation and family law matters.

What is the right of mothers in South Africa?

In South Africa, mothers have several important rights concerning their children, particularly in matters of custody, care, and parental responsibilities. Here are some key rights:

1. Parental Rights: Mothers have the right to make decisions about their child’s upbringing, including education, healthcare, and religion, especially if they are the primary caregiver or have sole custody.
2. Custody and Access: Mothers can apply for custody of their children, and the courts prioritize the best interests of the child when determining custody arrangements. They also have the right to seek visitation rights if the father has custody.
3. Child Maintenance: Mothers have the right to claim child maintenance from the father to ensure that the child’s financial needs are met.
4. Legal Representation: Mothers have the right to seek legal advice and representation in family law matters, including custody disputes and maintenance claims.
5. Protection Against Unreasonable Actions: Mothers can seek legal recourse if the father is acting unreasonably regarding custody, access, or maintenance obligations.
6. Participation in Major Decisions: Mothers should be involved in significant decisions affecting their child’s life, such as schooling and medical treatment.
7. Maternity Leave and Benefits: South African labour laws protect mothers’ rights to maternity leave and benefits in the workplace.
8. Access to Social Services: Mothers can access social services and support systems to help with parenting, health care, and financial assistance if needed.

It’s essential for mothers to be aware of their rights and seek legal advice if they encounter challenges in exercising them.

Can a mother keep the child away from the father in South Africa?

In South Africa, a mother cannot unilaterally keep a child away from the father without a valid legal reason. Here are some important points to consider:

1. Legal Custody: If the father has legal custody or parental rights, the mother must adhere to any court orders regarding access and custody. Ignoring these can lead to legal consequences.
2. Best Interests of the Child: South African law prioritises the best interests of the child. Keeping a child away from a parent without a justifiable reason (e.g., concerns about safety or well-being) is generally not in the child’s best interest.
3. Valid Reasons: If there are legitimate concerns—such as abuse, neglect, or substance abuse—these should be documented and, if necessary, reported to the authorities or brought before the court.
4. Court Orders: If there are disputes regarding custody or access, it’s advisable to seek a court order to formally address these issues rather than taking unilateral action.
5. Mediation: Engaging in mediation can help resolve conflicts between parents regarding custody and access in a way that considers the child’s best interests.

Who has more rights over a child in South Africa, a father or mother?

In South Africa, both parents generally have equal rights over a child, as the law emphasizes the best interests of the child. However, specific rights can depend on factors like custody arrangements and parental responsibilities:

1. Equal Rights: Both parents have equal rights in making decisions about the child’s upbringing, education, and healthcare, unless a court order states otherwise.
2. Custody Arrangements: If there is a custody agreement or court order in place, the terms of that order will determine the rights of each parent. For example, if one parent has sole custody, that parent may have more decision-making power.
3. Parental Responsibilities: The Children’s Act outlines parental responsibilities and rights, which include the right to care for the child, maintain contact, and contribute to the child’s upbringing. Both parents typically share these responsibilities.
4. Best Interests of the Child: Courts prioritize the child’s best interests when determining custody and access, which can sometimes lead to one parent being granted more rights in certain situations.

Overall, while mothers and fathers have equal rights, individual circumstances and legal agreements can influence specific rights and responsibilities. Legal advice is recommended for parents navigating custody and access issues.

Who qualifies for legal aid in South Africa and how can one apply for it?

In South Africa, legal aid is available to individuals who cannot afford legal representation. Here’s a breakdown of who qualifies and how to apply:

Qualifications for Legal Aid

1. Financial Means Test: Legal aid is primarily aimed at those with limited financial resources. Applicants must meet specific income and asset thresholds, which are reviewed periodically.
2. Type of Case: Legal aid typically covers civil, criminal, and family law matters, including:
   • Criminal cases where imprisonment may be a consequence.
   • Family law matters, such as divorce, custody, and maintenance.
   • Certain civil cases, such as disputes involving social grants or housing.
3. Merit of the Case: The case must have a reasonable chance of success. Legal aid is not provided for cases deemed frivolous or without merit.

How to Apply for Legal Aid

1. Visit a Legal Aid Office: Applicants can visit a local Legal Aid South Africa office. These offices are located throughout the country.
2. Complete the Application Form: At the office, you’ll need to fill out an application form. Staff will assist you in understanding the process and requirements.
3. Provide Documentation: You may need to present supporting documents, such as:
   • Proof of income (payslips, bank statements).
   • Details about your assets.
   • Information about the legal issue you are facing.
4. Assessment: Once your application is submitted, it will be assessed for eligibility based on financial means and the merits of the case.
5. Await Decision: You will be informed about the outcome of your application. If approved, you will be assigned a legal representative.

How does pro bono work in South Africa?

Pro bono legal services in South Africa refer to legal work undertaken voluntarily and without charge, aimed at assisting individuals or communities who cannot afford legal representation. Here’s how pro bono work functions in South Africa:

Key Aspects of Pro Bono Work

1. Purpose: Pro bono services are intended to promote access to justice, particularly for marginalized or disadvantaged individuals who may be unable to afford legal fees.
2. Eligibility: There are typically no strict eligibility criteria for receiving pro bono services, but organizations may prioritize cases based on need, urgency, and the potential impact of the legal issue.
3. Types of Cases: Pro bono work often covers a range of legal matters, including:
   • Family law (e.g., custody, divorce)
   • Criminal defense
   • Land rights and housing issues
   • Employment law
   • Public interest litigation

How Pro Bono Work is Organized

1. Law Firms and NGOs: Many law firms, both large and small, have pro bono departments or initiatives. Non-governmental organizations (NGOs) also provide pro bono legal services, often focusing on specific areas of law.
2. Legal Aid Clinics: Some universities and legal organizations operate legal aid clinics staffed by law students under the supervision of qualified attorneys, offering free legal advice and representation.
3. Referral Systems: Legal practitioners may refer clients to pro bono services if they identify that the client cannot afford legal representation.

How to Access Pro Bono Services

1. Contact Law Firms or NGOs: Individuals seeking pro bono assistance can reach out to local law firms or NGOs that offer these services. Many firms have specific programs dedicated to pro bono work.
2. Legal Aid South Africa: While this is a separate entity, it’s important to note that Legal Aid South Africa provides legal services to those who qualify based on financial means, and they may refer clients to pro bono resources.
3. Community Legal Clinics: Some communities have legal clinics that provide free advice and assistance. These clinics often focus on specific legal issues and can be a valuable resource.

Benefits of Pro Bono Work

• Access to Justice: Pro bono work helps bridge the gap for individuals who might otherwise be unable to afford legal help.
• Public Interest: It allows lawyers to engage in matters that benefit society as a whole, addressing systemic issues.
• Professional Development: For young lawyers and law students, pro bono work provides valuable experience and the opportunity to develop their skills while making a difference.

Overall, pro bono legal services play a crucial role in promoting equality and justice in South Africa.

What is the difference between an advocate and an attorney?

In South Africa, the terms “advocate” and “attorney” refer to different roles within the legal profession. Here are the key differences:

Advocate

1. Role: Advocates primarily represent clients in court and are specialised in litigation. They provide expert legal opinions and arguments during trials.
2. Direct Access: Generally, advocates are instructed by attorneys. However, in some cases, clients can approach an advocate directly (known as “direct access”).
3. Chambers: Advocates typically work independently from their own chambers or practice, rather than as part of a law firm.

Attorney

1. Role: Attorneys handle a wide range of legal matters, including providing legal advice, preparing documents, and managing client relationships. They often deal with clients directly.
2. Court Representation: While attorneys can represent clients in lower courts, they may instruct an advocate for higher courts or more complex litigation matters.
3. Law Firms: Attorneys typically work in law firms or practice independently. They may specialize in various areas of law, such as family law, criminal law, or commercial law.
4. Regulation: Attorneys are regulated by the Law Society of South Africa and must complete practical legal training and pass exams to practice.

Summary

In essence, attorneys are the first point of contact for clients and handle a broad range of legal work, while advocates specialize in courtroom representation and litigation. The two roles complement each other within the legal system.

Can a client pay an advocate directly?

In South Africa, it is generally not standard practice for clients to pay advocates directly. Advocates are typically retained by attorneys, who then handle the payment arrangements. Here are some key points regarding this process:

1. Attorney-Advocate Relationship: Clients usually hire an attorney, who will then brief an advocate for specific legal representation. The attorney is responsible for paying the advocate’s fees.
2. Direct Payments: While it’s possible for a client to pay an advocate directly in certain circumstances, this is less common and may require prior agreement. If an advocate is briefed directly (as in some cases of direct access), they may accept payment from the client.
3. Fee Agreements: If a client and an advocate agree on direct payment, it’s essential to have a clear fee agreement in writing, outlining the services provided and the payment structure.
4. Cost Orders: In court cases, if a client wins, the court may order the losing party to pay the legal costs, which could include the advocate’s fees, but these costs typically flow through the attorney.

It’s advisable for clients to clarify payment arrangements with their attorney or advocate upfront to avoid misunderstandings.