Questions posted on Live Q and A with Advocate Muhammad Abduroaf

12 questions posed when registering on www.ourlawyer.co.za/live Question 1 Western Cape I have a restraining order against the mother of my child as she harasses myself and my family. I pay my maintenance however she refuses to let me see my son. It’s been almost a year now and I have reached out to social workers as well as mediation for a parenting plan but so far, no assistance – PLEASE HELP Question 2 Kwazulu Natal Divorced since 2013. Settlement agreement in place and through the years the maintenance amount stated on that agreement has changed. This year we relocated and my daughter was given the opportunity to live with her school principal in order to finish her Gr7 year in an excellent school. Her father notified me that he will not pay her maintenance to me because she is not in my care. He has not paid it to anyone else either. He gave her pocket money and paid the school fees which has always been separate from the maintenance amount. Please advise. Question 3 Western Cape My husband has been paying maintenance for 21 years. The child does not go to school and he has a garnish order that was supposed to stop in November 2021. He went to court for 2 days an filled the paperwork but the papers were still not delivered to the mother. Can you pls give advice as to how to stop the garnish order? Question 4 Eastern Cape I have a case with my baby’s dad. He doesn’t want to pay the amount. I went to the court and when they asked him how much he will afford. He said “I don’t know”. Now he said he wants the lawyer and he’s complaining that I’m not giving the child where’s he knows very well that in his house they always drunk and fighting with his wife and he demand that his wife is the one who supposed to buy my child’s clothes. My question is it a must? Question 5 Gauteng I need a brief summary of citizenship law democracy and the constitution module. With regards to you and your family. Question 6 Western Cape Hi. We have a parenting plan in place. Note that normal drop off on every alternate Sunday is at 5pm. With school holidays it’s supposed to be 50/50 so father picks up on Friday and drops the kids the following Friday. This past school holidays. Father decided the Sunday he can’t take the kids for his school week and with me pushing back. He ended up dropping kids at my workplace at 9pm on a Sunday night. Note that I was not at work and he then dropped the kids at my parent’s place at 10pm. What can I do? Question 7 Western Cape My husband left me and our baby when she was 4 months old and went overseas. Despite asking him a million times to pay maintenance he always says he doesn’t have money but is a sales director for a big hotel group in Dubai. He has not contributed a cent to our child and I recently lost my job. What is the process of getting him or forcing him legally to pay maintenance? Question 8 Western Cape Afternoon. My daughter passed away in Feb 2021. L my daughter and M were married. M was 5 and Z 5 days. M moved in with my sister where she looked after the children. After 6 months he moved in with his mom. Now we don’t see them often. I saw them last 5 November 2021 when a social worker contacted him where he told them not to speak to him but to his lawyer. He doesn’t want to meet with me and the social worker. I would love to see them once or twice a month but he refuses. Question 9 Gauteng What do we do when the father is being denied access to the child? The mother claims her family is the one controlling the situation. The grandmother of the child was the mediator the whole time and now she has passed away. What steps should we follow to make things right? Question 10 Gauteng After 22 years my husband left me for another woman. At the time he unlawfully evicted me. I didn’t know it was against the law then. I ended up giving notice as the lease was on my name just to get to my personal and the kids’ stuff. Yet he took everything. Emptied my business account. The car that was supposed to be registered in my company name he registered behind my back in his name. This all happened 2021. End of July he disappeared. Kept on telling me because I can’t give him the original marriage certificate, I’m delaying the process. I got a lawyer but after still no summons he ended up refunding me. My eldest turned 18 last year. She just got her matric results with 3 distinctions. My youngest is turning 18 in February this year. I manage to serve him for maintenance under rule 58. He basically took my clients because of his lies. I tried to get a job again in the industry I worked for years. However, he worked in the same industry. Due to his misconduct I lost my job again when the final MIE check came back. I have been unable to find a job since then. He supplied me with stock to continue with the few clients I had left. But it’s always on his terms. Leaving me basically with income when it suits him. My eldest daughter filed her own maintenance claim. As he now sees it as a privilege if he pays for her varsity. She got a full scholarship for high school because of academic and sport. She was deputy head. I managed to get the papers signed on him in a parking lot as none of us knows where he lives. After that I am completely without income. I have moved into a house close to varsity because of all the promises that was made. Now I’m stuck with even more bills. I have never denied him to see his kids yet he has seen them at most 5 hours. And then only in a mall. How do I ensure that he assist with the necessary? I have no income and the amount he pays depends on the day. I also applied for loans purely for business use. To increase stock. He took all the stock as well yet I’m now stuck with all the loans. Again. No fix income. Any advice that can help me be ready as I’m due in court on the 20th of Jan 2022. He strongly believes that he no longer needs to pay maintenance once they turn 18. As it is, he stopped the eldest pocket money as she is an adult now. Please any advice would be much appreciated. Thank you know he has the money. Question 11 Western Cape Maintenance order that I want to contest. As my ex-wife was working whilst we were married. Now that we are divorced for 3 and half years and I moved on she still living with my mother in a second dwelling as property is huge. When I got married last year September, she went ballistic as I’m not living there right now I make it my responsibility to get up at 6 am and go fetch in the morning for school when my ex leaves at 630 am or when she works from home I still do it. So i don’t have access to my child when it concerns my weekend with him. I’m blocked by him and her as his WhatsApp messages is link to her phone I have absolutely no rights in this settlement as I paid maintenance but cannot have access to my child knowing that she listening in on our conversation. This Christmas had no access she took him away with no consent as always even now never saw him since last year 23 December. Question 12 Gauteng Good day. The father of my children refuses to pay maintenance for December. I asked.

Posted on 11 February 2025 by Telelaw

Questions posted on Live Q and A with Advocate Muhammad Abduroaf

12 questions posed when registering on www.ourlawyer.co.za/live

Question 1

Western Cape

I have a restraining order against the mother of my child as she harasses myself and my family. I pay my maintenance however she refuses to let me see my son. It’s been almost a year now and I have reached out to social workers as well as mediation for a parenting plan but so far, no assistance – PLEASE HELP

Question 2

Kwazulu Natal

Divorced since 2013. Settlement agreement in place and through the years the maintenance amount stated on that agreement has changed. This year we relocated and my daughter was given the opportunity to live with her school principal in order to finish her Gr7 year in an excellent school. Her father notified me that he will not pay her maintenance to me because she is not in my care. He has not paid it to anyone else either. He gave her pocket money and paid the school fees which has always been separate from the maintenance amount. Please advise.

Question 3

Western Cape

My husband has been paying maintenance for 21 years. The child does not go to school and he has a garnish order that was supposed to stop in November 2021. He went to court for 2 days an filled the paperwork but the papers were still not delivered to the mother. Can you pls give advice as to how to stop the garnish order?

Question 4

Eastern Cape

I have a case with my baby’s dad. He doesn’t want to pay the amount. I went to the court and when they asked him how much he will afford. He said “I don’t know”. Now he said he wants the lawyer and he’s complaining that I’m not giving the child where’s he knows very well that in his house they always drunk and fighting with his wife and he demand that his wife is the one who supposed to buy my child’s clothes. My question is it a must?

Question 5

Gauteng

I need a brief summary of citizenship law democracy and the constitution module. With regards to you and your family.

Question 6

Western Cape

Hi. We have a parenting plan in place. Note that normal drop off on every alternate Sunday is at 5pm. With school holidays it’s supposed to be 50/50 so father picks up on Friday and drops the kids the following Friday. This past school holidays. Father decided the Sunday he can’t take the kids for his school week and with me pushing back. He ended up dropping kids at my workplace at 9pm on a Sunday night. Note that I was not at work and he then dropped the kids at my parent’s place at 10pm. What can I do?

Question 7

Western Cape

My husband left me and our baby when she was 4 months old and went overseas. Despite asking him a million times to pay maintenance he always says he doesn’t have money but is a sales director for a big hotel group in Dubai. He has not contributed a cent to our child and I recently lost my job. What is the process of getting him or forcing him legally to pay maintenance?

Question 8

Western Cape

Afternoon. My daughter passed away in Feb 2021. L my daughter and M were married. M was 5 and Z 5 days. M moved in with my sister where she looked after the children. After 6 months he moved in with his mom. Now we don’t see them often. I saw them last 5 November 2021 when a social worker contacted him where he told them not to speak to him but to his lawyer. He doesn’t want to meet with me and the social worker. I would love to see them once or twice a month but he refuses.

Question 9

Gauteng

What do we do when the father is being denied access to the child? The mother claims her family is the one controlling the situation. The grandmother of the child was the mediator the whole time and now she has passed away. What steps should we follow to make things right?

Question 10

Gauteng

After 22 years my husband left me for another woman. At the time he unlawfully evicted me. I didn’t know it was against the law then. I ended up giving notice as the lease was on my name just to get to my personal and the kids’ stuff. Yet he took everything. Emptied my business account. The car that was supposed to be registered in my company name he registered behind my back in his name. This all happened 2021. End of July he disappeared. Kept on telling me because I can’t give him the original marriage certificate, I’m delaying the process. I got a lawyer but after still no summons he ended up refunding me. My eldest turned 18 last year. She just got her matric results with 3 distinctions.

My youngest is turning 18 in February this year. I manage to serve him for maintenance under rule 58. He basically took my clients because of his lies. I tried to get a job again in the industry I worked for years. However, he worked in the same industry. Due to his misconduct I lost my job again when the final MIE check came back. I have been unable to find a job since then. He supplied me with stock to continue with the few clients I had left. But it’s always on his terms. Leaving me basically with income when it suits him. My eldest daughter filed her own maintenance claim. As he now sees it as a privilege if he pays for her varsity. She got a full scholarship for high school because of academic and sport. She was deputy head. I managed to get the papers signed on him in a parking lot as none of us knows where he lives. After that I am completely without income. I have moved into a house close to varsity because of all the promises that was made. Now I’m stuck with even more bills. I have never denied him to see his kids yet he has seen them at most 5 hours. And then only in a mall. How do I ensure that he assist with the necessary? I have no income and the amount he pays depends on the day. I also applied for loans purely for business use. To increase stock. He took all the stock as well yet I’m now stuck with all the loans. Again. No fix income. Any advice that can help me be ready as I’m due in court on the 20th of Jan 2022. He strongly believes that he no longer needs to pay maintenance once they turn 18. As it is, he stopped the eldest pocket money as she is an adult now. Please any advice would be much appreciated. Thank you know he has the money.

Question 11

Western Cape

Maintenance order that I want to contest. As my ex-wife was working whilst we were married. Now that we are divorced for 3 and half years and I moved on she still living with my mother in a second dwelling as property is huge. When I got married last year September, she went ballistic as I’m not living there right now I make it my responsibility to get up at 6 am and go fetch in the morning for school when my ex leaves at 630 am or when she works from home I still do it. So i don’t have access to my child when it concerns my weekend with him. I’m blocked by him and her as his WhatsApp messages is link to her phone I have absolutely no rights in this settlement as I paid maintenance but cannot have access to my child knowing that she listening in on our conversation. This Christmas had no access she took him away with no consent as always even now never saw him since last year 23 December.

Question 12

Gauteng

Good day. The father of my children refuses to pay maintenance for December. I asked.

Updated: 16 April 2020
New regulations have been issued on 16 April 2020. Click on the link below: The material change is that you do not have to have a court order or a parental responsibilities and rights agreement or parenting plan, registered with the family advocate. Possession of a birth certificate or certified copy of a birth certificate is now also allowed.

Let’s talk Constitutionally – What about the parents whom the Minister of Social Development excluded from moving their children during the South African National Lockdown – Is this new law fair? Does it not discriminate between children and parents?

Written by Advocate Muhammad Abduroaf It is day 15 of the National Lockdown in South Africa. Our President last night announced that the lockdown would extend for a further two weeks. Lockdown, for now, would extend until the end of April 2020. What does this mean for parents who want to have contact with their children during the lockdown period? Can they collect or visit their children during the extended lockdown period? Let us unpack the legal situation.

Moving of children during the National Lockdown Period

When the lockdown was announced, there was uncertainty as to whether parents may move children during this period. We are referring to parents and children living in separate homes. After the lockdown commenced, a directive was then issued stating that children may not be moved between homes. This brought certainty to the issue, however, had far-reaching consequences. The directive said that the child should remain with the parent he or she is at, at the start of the lockdown period.

The current regulations on the movement of children between parents

On Tuesday 07 April 2020, the Minister of Social Development, Ms Lindiwe Zulu, MP, made changes to the regulations regarding the movement of children during the lockdown period. It is now possible for certain children to be moved between parents during the lockdown period. The regulations apply to the following parents only:

There are arrangements in place for the children to move for one parent to another in terms of a court order; or
A parental responsibilities and rights agreement or parenting plan registered with the office of the Family Advocate; and
In the household to which the child is to move, there is no person who is known to have come into contact with, or is reasonably suspected to have come into contact with, a person known to have contracted, or reasonably suspected to have contracted, COVID-19;
The parent or caregiver transporting the child concerned must have in his or her possession, the court order or the latter agreement, or a certified copy thereof.

Are these new regulations potentially unconstitutional?

Any law that discriminates against a class of people unjustifiably is unconstitutional. The class of people this new regulation discriminates against are one or more of the following parents:

Parents who are not divorced, but separated;
Never enforced their parental responsibilities and rights by obtaining a court order;
Parents who do not have any co-parenting issues;
Unmarried parents who did not see the need to approach the Court for a Court Order;
Parents who did not see the need to register a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate; and
Parents who could not afford to obtain a court order or register a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate; and
So on.

Infringement of the right to equality of the aforementioned parents and children

Section 9 of our Constitution (Act 108 of 1996) states the following: (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. Parents and minor children are not being treated equally. Only parents and children who are part of court orders and a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate are taken care of by the Minister. Not the rest of the South African population. This infringement of constitutional rights cannot be justified. Let us unpack it.

Infringement of the right to human dignity

Concerning human dignity, section 10 of our Consitution states, “Everyone has inherent dignity and the right to have their dignity respected and protected.” I am sure, that all parents who do not have a court order or a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate feel that their dignity has been violated. This is so as the government now allows another parent who has the latter documents to move their children. There is further no logical justification to preference some parents over others. Or to put it differently some children over others.

What can parents do who do not have a court order or a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate?

It seems that the only recourse for parents who do not have a court order or a parenting plan or responsibilities and rights agreement registered with the Office of the Family Advocate has two options:

Approach the court urgently for a court order;
Approach the office of the family advocate to register a parenting plan or responsibilities and rights agreement.

Whether or not the court would be of adequate assistance during the lockdown and entertain your application, depends on many factors. However, in our view, if there is sufficient urgency, and as we are dealing with the best interests of children, the application would properly be dealt with. Concerning approaching the office of the family advocate to register a parenting plan or responsibilities and rights agreement; this could come with its challenges. But not necessarily so for all cases. Contacting their offices beforehand would be advised. Written by Advocate Muhammad Abduroaf (LL.B LL.M) – Advocate of the High Court of South Africa Advocate Muhammad Abduroaf is a member of the Legal Practice Council of South Africa

No equality and dignity for parents without Court Order and Registered Plans and Agreements We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws

Posted on 11 February 2025 by Telelaw

Questions posted on Live Q and A with Advocate Muhammad Abduroaf

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