Obtain advice from Felicity An Guest

Complete the form below to consult with Felicity An Guest Arrange an advice Consultation (non-legal) with Ms Felicity An Guest. The consultation can take place telephonically, or Face to Face, in Cape Town. The costs are R 500 – 00 (Five Hundred Rand) for an hour or for part thereof. Complete the form below and receive an email with all the details. Click here to view testimonials of people Felicity assisted. Please note that the consultation is not for legal advice. The consultation will be with Felicity An Guest whereby she can give you advice based on her experiences. We assume that you are familiar with Ms Felicity An Guest and her knowledge surrounding issues of child maintenance in South Africa. If you require legal advice on child maintenance or other family law related issues, please use this link – Legal Advice. [ninja_form id=75]

Posted on 11 February 2025 by Telelaw

Obtain advice from Felicity An Guest

Complete the form below to consult with Felicity An Guest

Arrange an advice Consultation (non-legal) with Ms Felicity An Guest. The consultation can take place telephonically, or Face to Face, in Cape Town. The costs are R 500 – 00 (Five Hundred Rand) for an hour or for part thereof. Complete the form below and receive an email with all the details. Click here to view testimonials of people Felicity assisted.

Please note that the consultation is not for legal advice. The consultation will be with Felicity An Guest whereby she can give you advice based on her experiences. We assume that you are familiar with Ms Felicity An Guest and her knowledge surrounding issues of child maintenance in South Africa.

If you require legal advice on child maintenance or other family law related issues, please use this link – Legal Advice.

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Child custody disputes during the Covid-19 pandemic and the Lockdown – What impact did the National Lockdown have on it?
With three months into the national lockdown, no one will dispute that it had a profound effect on all aspects of daily life. The same would apply to marriages, family relations and co-parenting to mention a few. A lot has been written on the topic of the movement of children during the lockdown. At the start of the lockdown, the movement of children was prohibited. The child had to remain with the parent with whom he or she was with at the start of the lockdown. A few weeks into the lockdown, things changed. Children could move between parents if there were a court order, parental rights and responsibilities agreement or parenting plan registered with the office of the family advocate. Later, things further developed where the magistrate’s permit came into play. Read more above the changes to the regulations over time by clicking on this link. You would find an extensive overview of the history of the movement of children during the lockdown.

Have child custody disputes increased three months after the start of the lockdown?

One would be a fool to say that all things are the same three months after the lockdown when it comes to parental problems. At the start of the lockdown, Our Lawyer (Pty) Ltd received a lot of queries regarding regulations concerning the movement of children. This was so especially during the first few weeks. However, looking at various analytics, including the number of queries received on its blogs, and email and telephone queries, it would seem that the numbers have not increased much if any. This is a broad assumption, and not based on any empirical data. Those numbers are in contrast to that of child maintenance disputes which have always been high during the lockdown.

What can be said about this assumed drop in numbers?

Considering the Covid-19 pandemic, and its associated lockdown, children and parents were at home for an extremely long time. Many children are still at home and some parents did not go back to work. Furthermore, many nannies are not there to assist. During times like these, parents would set aside their differences and find common ground. If a parent decided not to allow the other parent contact, it would mean that he or she would have to care for the child the entire day and night for very long periods. This is so as the child would not be attending school and would have to be cared for and entertained the entire day. This is not only exhausting but expensive as well.

Moving forward during the lockdown

Although the economy is slowly spinning its wheels, and children are returning to school, now more than ever, parents must work together for the sake of their children, and their own sake. With jobs being lost and money being scarce, personal differences need to be put aside and the situation needs to be looked at clearly and rationally. It would be hard for a parent to care for a child alone during the lockdown, especially if there is assistance available. Having said that, parents should continue to adequately maintain their children during this period, and ensure that all their basic needs are met.

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

Appealing a Maintenance Court Decision or Judgment
In its very nature, maintenance matters are complicated and never straight forward. For starters, it deals with the income and expenditure of both parents and the needs of the child. It is not easy for a maintenance court to determine with a high degree of certainty what the true income of a self-employed parent is. The same applies to the true expenses of a parent.

Manipulating the maintenance system

It is very easy for a parent to manipulate documentation or only present information which he or she believes would be in their favor. For example, if a parent earns extra income by selling clothing, he or she may decide not to disclose that information to the maintenance Court. By doing so, the Maintenance Court will determine the maintenance of the child based on the incorrect facts presented. This could become more problematic when one parent knows of the other parent’s additional income but cannot prove it. If the parties have legal representatives, this issue of improper disclosure is limited to a certain extent. For example, lawyers would be in a good position to do their own investigations and verify certain relevant information.

Improper disclosure of expenses

Then there is the issue of the expenses of the child. The court requires a proper outline of all the monthly, daily and yearly expenditure of the child. Without all the relevant information before it, the court is not in a proper position to make a fair decision regarding child maintenance. This is so as the amount of maintenance a parent should pay is directly determined by what is the child’s monthly expenditure. For example, if a parent earns a million rand a month, his or her maintenance contributions can be no more than what the child actually cost per month.

Intentionally inflating expenses

It often happens that a parent cannot, or do not provide a true reflection as to what the child actually cost. Amounts are inflated, and there is no way that the court or the other parent can really question those amounts. Let’s say the mother is taking the father to the Maintenance Court but the father only sees the child once a month. The father, in this case, would not be able to confirm or verify whether or not the child actually eats as much as the mother makes it out to be. And many times, parents come to court with an attitude of “let me claim more and the court will give me less.”

Unhappy with the maintenance magistrate’s decision

Let’s say a maintenance enquiry was held by a maintenance magistrate, and a decision was handed down. Should both parents be happy with the decision of the magistrate, their lives can continue and the party who should pay maintenance should comply with the order. However, it often happens that one parent is not happy with the maintenance order. We often get queries where parents want to know what they can do when the maintenance Court did not find in their favor. Sometimes parents feel that the Maintenance Court was one-sided. In such a case he or she wants the decision of the magistrate to be relooked at. In order for this to happen, the Parent should appeal the decision of the magistrate.

Appealing a maintenance Court decision

The purpose of this article is not to explain the technical procedure of appealing a magistrate’s judgment. The procedure is a bit complicated and we suggest you make use of a legal practitioner to assist you should you wish to appeal a decision. However, what we want to bring home is that it is possible for the decision of a Maintenance Court to be relooked at by a higher Court and provide you with some insight as to what happens. The higher Court, in this case, will be the High Court. If you reside in Cape Town, it is the Western Cape High Court.

What happens at the Appeal Court?

Let’s say all the court rules and procedures were complied with and the matter is now before the Appeal Court. The Appeal Court will comprise of two judges. They would have read through the entire court record in the Magistrate’s Court before the matter is heard. Taking it one step back, all proceedings in the magistrate’s court is digitally recorded. So, when you decide to appeal a decision of the magistrate’s court the recordings are sent to an authorised typist, who would type out the entire Court record. You cannot type out the record yourself.

Heads of Argument

Now before you argue your case at the Appeal Court you would want the judges to first know what your arguments are. At the same time, you would like to know what the other lawyer’s arguments are. In this regard, you would file heads of argument a few weeks before the appeal hearing date. Basically, you will outline what points you will be focusing on, and what law you will be relying on.

You need to convince the Appeal Court there was an error

Your purpose at the appeal is to try to convince the judges that the magistrate erred in his or her decision. In other words, made a mistake. In relation to a maintenance Court matter, you may even wish to convince the court that the maintenance officer did not follow the procedures outlined in the Maintenance Act or he or she did not properly investigate the maintenance complaint. For example, the maintenance officer just took the father’s word when he said he was unemployed. Or the mother’s word when she said she earns no additional income.

Incorrect maintenance investigation

Had the maintenance officer done some further investigations by requesting relevant information, or instructing the maintenance investigator, the true facts would have been before the Maintenance Court. In other words, the magistrate would have made a different decision. Now, this would apply to a maintenance Court where the provisions in-place in the Maintenance Act was not followed. If this happened, you may appeal.

The magistrate’s reasons for his or her decision

The High Court judges would have the magistrate’s reasons for his decision before them. In other words, the magistrate would provide a document to the appeals court where he or she explains why he or she made a certain decision in the Maintenance Court matter. He or she may, for example, say that based upon the evidence presented, the father earned an amount which does not justify him paying more than what he is currently paying. Or the maintenance magistrate might say that based upon all the evidence presented, he could not find any information that will justify an amount greater than what the father is currently paying. The appeal Court would look at all these reasons and the evidence that was presented at court. It would listen to the arguments of the legal representatives and determine whether or not the magistrate made an error in judgment.

The appeals court’s decision

If it is decided that the magistrate made an error in judgment, the court would in those circumstances change the order or refer the matter back to the maintenance court for a proper enquiry. If the court decides that the magistrate was correct in its judgment, it will dismiss the appeal. So in short if you are dissatisfied with a maintenance magistrates court decision, you have full right to appeal it.

Posted on 11 February 2025 by Telelaw

Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Carletonville.
Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty to pay child maintenance and support their children. Once the child is self-supporting (being able to care for him or herself), the obligation falls away. This can happen when the child is 18, 20, or even 30. It all depends on the circumstances of the case.
Claiming child maintenance for your child in Carletonville
Whether you claim child maintenance in Carletonville, or any other city in South Africa, the procedures would be the same. There are however two (2) courts that can deal with child maintenance matters. That is a divorce court, in a divorce matter, and a Child Maintenance Court. For this article, we will focus on claiming maintenance in a Maintenance Court matter in Carletonville.
The maintenance scenario – Carletonville South Africa
In this article, we will deal with the following fictitious scenario, in a child maintenance matter:
The Child is seven years old and attends school in Carletonville
The child is cared for by the mother who works in Carletonville
The mother works and earns a Salary of R 10 000
The father sees the child every second weekend. He also lives and works in Carletonville
The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
The father earns a reasonable salary and can afford the R 20 000 – 00 per month
The mother claims R 4 000 – 00 maintenance as the father earns double her salary
What is the first step the mother must take in claiming child maintenance?
The first thing the mother must do is work out exactly what the child costs by item. She breaks down the minor child’s living expenses, starting from rent or accommodation to groceries to school fees etc. Once she has done that, she would need to determine what exactly does the minor child cost per month, seeing that she will be asking the father to contribute towards that. As best as possible, she needs to collect proof of expenses. This can be in the form of receipts.
How does she start the legal process?
The mother now needs to approach the maintenance court in the area where she lives or works to lodge a complaint for child maintenance. If she lives or works in Carletonville, it would be the maintenance court in Carletonville. She will complete a Form A wherein she will provide all the expenses for her and the minor child. She would also have to stipulate her income. Once she completed the form and submitted it to the maintenance court, she must then follow the next step.
What do you do while waiting for the maintenance court date?
While you wait to be informed of the court date by the Maintenance Court of Carletonville, and up until the actual first court date, you need to ensure that you keep a record of all income and expenses for you and the child. This is very important as the court allocates maintenance based on recent income and expenses.
What happens at the first court appearance at the Carletonville Maintenance Court?
Once you have been notified of the maintenance court date by the Carletonville Maintenance Court, you need to ensure that you attend it. On that day, both you and the father of the child would appear before a maintenance officer. The maintenance officer would go through both your income and expenses as well as that of the father. If all the relevant information is not before the maintenance court, then the matter may be postponed in order for the parties to submit it.
The maintenance officer will try to settle the matter and have the parents come to an agreement regarding the amount of child maintenance to be paid. If they cannot come to an agreement regarding the child maintenance to be paid, the matter would have to proceed to a formal hearing or trial before a Magistrate.
How does the Maintenance Court hearing or trial work in Carletonville?
Essentially, the maintenance court is called upon to make a fair ruling regarding what is a fair amount of child support that needs to be paid. For that to happen, the parents would have to give evidence in that regard. The mother would present to the court what the child costs, what she contributes and what she requires the other parent to pay. The Father would have a right to question the mother and to present evidence as to why he cannot afford the amount requested or why he feels it is an unfair amount. The mother can they also question him.
At the end of the day, the Carletonville Maintenance Court would be able to properly determine what is a fair and adequate amount of child maintenance to pay after being presented will all relevant information. The Carletonville Maintenance Court should play an active role in determining what is a fair amount of child maintenance the father should pay.
The above child maintenance application principles should apply to the following provinces and cities:
Eastern Cape:
Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha
Port Elizabeth, Queenstown, Uitenhage, Zwelitsha
Free State:
Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom
Gauteng:
Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging
KwaZulu-Natal:
Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi
Limpopo:
Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi
Mpumalanga:
Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth
Western Cape:
Bellville, Carletonville, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Posted on 11 February 2025 by Telelaw

Passport Application for a minor child: Mother cannot find the father to provide the necessary consent at the Department of Home Affairs. The Application is therefore refused.

Passport Application for a minor child: It is not easy being a single parent, and at the same time, the primary caregiver of the child. This is even so where the other parent pays child support and regularly sees the child. This article deals with the situation where the father of the child is missing. He, therefore, does not pay any child support, nor has a relationship with the child. This causes a problem when it comes to issues of guardianship rights. For example, when the mother wants to enrol the child in a school or provide medical consent. The question would always arise – “where is the father?”, or “did the father give his consent?” When it comes to official matters, for example, the application for a passport, then things become more complicated. This is where the issue of parental consent for the application for a passport is looked at. Now let us first deal with the law.

Parental Responsibilities and Rights of Fathers

In short, if a father was married to the mother, he would automatically have full parental responsibilities and rights to the child born from them. This includes the rights of care, contact and guardianship. If he was not married to the mother of the child, he can acquire parental responsibilities and rights. In short, in order for the unmarried father to acquire parental responsibilities and rights, he has to form part of the child’s life. He may also attempt to do so and the mother hinders it from happening. In the latter situation, he would still acquire parental responsibilities and rights.

The Unmarried Father’s Rights

The unmarried father can acquire parental responsibilities and rights to his child in a number of ways. They include paying child support, visiting the child and so on. Therefore, not all fathers would have parental responsibilities and rights over their children. Some fathers just impregnated the mothers and went missing. Such a father cannot rock up, 12 years later and demand to take the child with him to the movies. I think you understand the point we are trying to make.

What is the legal effect of having parental responsibilities and rights over a child?

Should a father have parental responsibilities and rights over a child – he has certain defined rights. Those rights could either be absolute, or specific. An absolute right would be one of guardianship. An example would be an application for a passport or the removal of a child from the Republic. In the latter cases, the father’s consent is an absolute requirement which can only be taken away by a court of law. Then there are relative parental responsibilities and rights over a child. These rights depend on the circumstances of the case. An example would be that of visitation. A father who has parental responsibilities and rights of contact over a child cannot demand to see the child at any time. He may not even be able to demand to see the child half the time. His contact rights would be limited to what is in the child’s bests interests. And that would change from time to time. For example, should the father live 100km away from his children, contact could be every second weekend. But, should he live down the road, it could be every second day.

The Legal Problem for unmarried parents and their rights

The consent required in relation to the exercise of parental responsibilities and rights over certain children have challenges. How would anyone know whether or not an unmarried father has parental responsibilities and rights? For example, lets say the father was never involved in the child’s life – what proof does she have to show the authorities that the father does not have any parental responsibilities and rights? Would the Department of Home Affairs just accept the allegation made by the mother? I do not think so. And this could cause a problem in two ways. Let’s say the father has parental responsibilities and rights over a child. The mother however now wishes to relocate overseas. She tells the authorities at the Department of Home Affairs that she does not know where the father is, and he was never involved in the child’s life. If the Department of Home Affairs accepts her lie, the mother would be able to leave South Africa with the child, and without the father knowing. Let alone obtain his consent. On the other hand, let’s say that the father was really not involved in the child’s life since birth. He went missing after he found out the mother was pregnant. He never paid for any of the birthing costs, nor any of the child’s expenses since birth. Should the mother approach the Department of Home Affairs, would they allow her to obtain a passport without the father’s consent? We could be wrong, but we doubt they will.

What can a mother do if she does not have the consent from the father

As the law stands and with the current position of the Department of Home Affairs, the following needs to be done if the father refuses to give his consent, or cannot be found.

Application to the High Court

We advise that you consult with a legal advisor to advise you on the merits of your case. If there are merits, an application to the relevant court would be made. The Court would decide on the matter after hearing from both the parents. If it is decided that it would be best for the child to obtain a passport or relocate, the court would grant the appropriate order.

These are the documents that would form part of the Court file:

Notice of Motion

This document outlines the relief you are asking the court for. This would be the case where the details of the father is known. Two of the clauses could be as follows:

The Respondent’s consent is not required for the departure of the minor child, Little One, with identity number 0813040502086 (hereafter referred to as “the minor child”), from the Republic of South Africa, and to relocate to France, as provided for in section 18(5) of the Children’s Act 38 of 2005;
The Respondent’s consent is not required for the return of the minor child to the Republic of South Africa for visits;

Founding Affidavit

In this document, you outline the facts of the matter. You would deal with why you want consent.

Opposing Affidavit

If the father opposes the Application, he would file this affidavit. In this document he would outline reasons why the court should not give consent.

Replying Affidavit

You would then get an opportunity to reply to the father’s allegations made.

Advice to parents who wants to relocate or temporary leave South Africa with the minor child

If you need to relocate, with a child, and the other parent refuses to give consent, speak to a legal advisor, or to us. They would advise you on your case, and if need be, assist or direct you to the proper people for an Application to court for an order that the requirement of consent is dispensed with. Should you be successful in such an application, the Order would be shown to the Department of Home Affairs when applying for a passport and when leaving the Country. The Officials would comply with the Order. The Order of Court can also be shown to the officials overseas should they want to know where the consent of the father is. [caption id="attachment_7081" align="alignleft" width="217"]

Advocate Muhammad Abduroaf[/caption] In the same manner, should you want to leave South Africa to go overseas on holiday with the minor, approach us for advice should the other parent refuse to give consent. Your visit overseas could be to visit a family member, or just for a break. There should be no reason why you cannot take the minor child with you on holiday. [caption id="attachment_6387" align="alignleft" width="300"]

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