How do I have my case heard in the Constitutional Court of South Africa? I have a case that has constitutional implications.

In South Africa, the Constitutional Court is the highest court in matters related to the interpretation, protection, and enforcement of the Constitution. The Constitutional Court has the authority to hear various types of cases, particularly those involving constitutional matters. Here are some common types of cases that can be appealed to the Constitutional Court:

Constitutional Matters:

Cases involving the interpretation, application, or violation of the provisions of the Constitution of the Republic of South Africa.

Human Rights Violations:

Cases involving alleged violations of fundamental human rights guaranteed by the Constitution, such as freedom of expression, equality, and dignity.

Legislation Review:

Challenges to the constitutionality of legislation. The Constitutional Court has the authority to review the constitutionality of laws and may declare them invalid if they are found to be inconsistent with the Constitution.

Jurisdictional Disputes:

Cases involving disputes about the constitutional powers and functions of different branches of government or between different spheres of government.

Electoral Matters:

Cases related to elections, including disputes over the validity of elections and matters concerning the electoral system.

Access to Justice:

Cases involving access to justice and fair trial rights, particularly if there are constitutional implications.

Land and Property Rights:

Cases related to land and property rights, including disputes over land reform policies and practices.

Interpretation of the Bill of Rights:

Cases where the interpretation of specific rights in the Bill of Rights is at issue. It’s important to note that the Constitutional Court has the authority to hear matters referred to it by lower courts, as well as matters that are brought directly to the court. Additionally, the court’s jurisdiction is not exhaustive, and there may be other specific matters that can be appealed based on constitutional grounds. If you are unhappy with a Court decision and require legal assistance regarding a possible appeal to the Constitutional Court, feel free to contact us for assistance.

Contact details of the Constitutional Court of South Africa

The contact details of the Constitutional Court of South Africa are as follows as found on https://www.concourt.org.za/index.php/contact-us/superior-courts-contacts: Director of the Constitutional Court: Tel: +27 11 359-7459 Email: [email protected] Registrar of the Constitutional Court: Tel: +27 11 359-7400 Email: [email protected] General office: of the Constitutional Court (Court cases): Tel: +27 11 359-7468 Cell: +27 67 715-3950 (Only for Emergency) Email: [email protected] Library of the Constitutional Court: Tel: +27 11 359-7400 Email: [email protected]
Posted on by Telelaw

How do I have my case heard in the Constitutional Court of South Africa? I have a case that has constitutional implications.

In South Africa, the Constitutional Court is the highest court in matters related to the interpretation, protection, and enforcement of the Constitution. The Constitutional Court has the authority to hear various types of cases, particularly those involving constitutional matters. Here are some common types of cases that can be appealed to the Constitutional Court:

Constitutional Matters:

Cases involving the interpretation, application, or violation of the provisions of the Constitution of the Republic of South Africa.

Human Rights Violations:

Cases involving alleged violations of fundamental human rights guaranteed by the Constitution, such as freedom of expression, equality, and dignity.

Legislation Review:

Challenges to the constitutionality of legislation. The Constitutional Court has the authority to review the constitutionality of laws and may declare them invalid if they are found to be inconsistent with the Constitution.

Jurisdictional Disputes:

Cases involving disputes about the constitutional powers and functions of different branches of government or between different spheres of government.

Electoral Matters:

Cases related to elections, including disputes over the validity of elections and matters concerning the electoral system.

Access to Justice:

Cases involving access to justice and fair trial rights, particularly if there are constitutional implications.

Land and Property Rights:

Cases related to land and property rights, including disputes over land reform policies and practices.

Interpretation of the Bill of Rights:

Cases where the interpretation of specific rights in the Bill of Rights is at issue.

It’s important to note that the Constitutional Court has the authority to hear matters referred to it by lower courts, as well as matters that are brought directly to the court. Additionally, the court’s jurisdiction is not exhaustive, and there may be other specific matters that can be appealed based on constitutional grounds.

If you are unhappy with a Court decision and require legal assistance regarding a possible appeal to the Constitutional Court, feel free to contact us for assistance.

Contact details of the Constitutional Court of South Africa

The contact details of the Constitutional Court of South Africa are as follows as found on https://www.concourt.org.za/index.php/contact-us/superior-courts-contacts:

Director of the Constitutional Court:
Tel: +27 11 359-7459
Email: [email protected]

Registrar of the Constitutional Court:
Tel: +27 11 359-7400
Email: [email protected]

General office: of the Constitutional Court (Court cases):
Tel: +27 11 359-7468

Cell: +27 67 715-3950 (Only for Emergency)

Email: [email protected]

Library of the Constitutional Court:
Tel: +27 11 359-7400
Email: [email protected]

Related Post

Paternity disputes and Scientific DNA Testing in Child Legal Matters

Paternity disputes are not uncommon in our courts of law. What sparks them varies, however, all disputes are messy. For one, the mere allegation that he is not the father of the child may directly or indirectly affect the dignity of the mother, and that of the child. In other words, it is suggested that she had more than one sexual partner at the time, and the child was born from such a relationship. Nonetheless, the issue can speedily be resolved through scientific DNA testing.

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Paternity – Legal Settings

There are two common legal settings where a parent (or alleged parent) would dispute paternity. The one would be in a child maintenance dispute, where the father alleges that he is not the biological father of the child, and therefore cannot be ordered to pay child maintenance. The other situation would be in a child custody or visitation dispute. Here the mother would allege that the man is not the father, or he denies paternity.

Paternity Dispute Scenarios

There are other scenarios where paternity can become an issue. One would be in the case of inheritance. A parent would allege that a child is an heir of the person who passed on. Another would be in the case of marriage. What happens if there is a rumour your intended bride is your half-sister? These disputes and many others can only be resolved with DNA or scientific testing. Below we further deal with the question as to whether a court can force a parent and a child to submit to a blood test. That is where It gets interesting. The latter scenario laid the seed for researching and writing this post.  Read on to learn more. You may learn something new.  

The legal presumption of pater est quem nuptiae demonstrant

Now let’s start with the common law. There is a phrase or common law presumption, “Pater est quem nuptiae demonstrant”. It is a Latin phrase which states that the father is he who is married to the mother. In other words, if the child was born whilst the father was married to the mother, it is presumed that he is the father. Therefore, unless the father or mother can prove otherwise, every child born from a marriage is presumed to be the child of the husband. If the husband or wife disputes it, they must prove it. This may become an issue during divorce proceedings. The wife may allege that the husband is the father of the child and claim maintenance from him. He would then in his plea state that he is not the father and accordingly not responsible to pay child support. At the divorce trial, he would have to prove that he is not the father. A simple way of resolving the dispute would be through a blood test or scientific DNA testing. Now let’s move on to written law, in legislation and learn some more.  

The Law on paternity disputes in relation to minor children

There are two pieces of legislation that applies in relation to paternity issues regarding minor children. It is the Maintenance Act 99 of 1998, in relation to child maintenance matters, and the Children’s Act 38 of 2005, in relation to child legal matters in general. We shall, however, start with the Children’s Act 38 of 2005.  

The Children’s Act – Paternity Disputes

The Children’s Act has two (2) sections dealing with paternity issues. The first deals with the Presumption of paternity in respect of a child born out of wedlock and the other, the refusal to submit to the taking of blood samples. We quote them next.

Section 36: Presumption of paternity in respect of a child born out of wedlock

“If in any legal proceedings in which it is necessary to prove that any particular person is the father of a child born out of wedlock it is proved that that person had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is, in the absence of evidence to the contrary which raises a reasonable doubt, presumed to be the biological father of the child.”

Section 37: Refusal to submit to the taking of blood samples

“If a party to any legal proceedings in which the paternity of a child has been placed in issue has refused to submit himself or herself, or the child, to the taking of a blood sample in order to carry out scientific tests relating to the paternity of the child, the court must warn such party of the effect which such refusal might have on the credibility of that party.”

Create Reasonable Doubt

Looking at the aforementioned sections of the Children’s Act, in a paternity dispute, it is presumed that if parties had sexual intercourse at any time when that child could have been conceived, the male is the father. The father can disprove this by raising reasonable doubt. This can be done by proving that he was sterile, or through scientific DNA testing. If another man comes and says he is the father; we are sure some reasonable doubt may be created. According to the next section in the Children’s Act, if a party refuses to submit to a paternity test, it could affect his or her credibility. Therefore, if someone is truly a parent, or not a parent, and has nothing to fear from the truth, he or she should submit themselves to a blood test. Failing which, it might affect that person’s credibility in the matter. The court could then infer that he or she is lying. Now let’s move on to the Maintenance Act in child maintenance matters.  

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The Maintenance Act – Paternity Disputes

In our experience, it is the offices of the maintenance courts that deals mostly with paternity disputes. When the father gets called to the maintenance court, to pay child support for a child he does not have a relationship with, in some cases, he would invoke the paternity defence. In other words, he would dispute the paternity of the child. In such a case, he would request a paternity test. Section 21 of the Maintenance Act deals with orders relating to scientific tests regarding paternity. Here we quote the relevant section next.

21 Orders relating to scientific tests regarding paternity

(1) If the maintenance officer is of the opinion- (a) that the paternity of any child is in dispute;(b) that the mother of such child, as well as the person who is allegedly the father of such child, are prepared to submit themselves as well as such child, if the mother has parental authority over the said child, to the taking of blood samples in order to carry out scientific tests regarding the paternity of that child; and (c) that such mother or such person or both such mother and such person are unable to pay the costs involved in the carrying out of such scientific tests, the maintenance officer may at any time during the enquiry in question, but before the maintenance court makes any order under section 16, request the maintenance court to hold an enquiry referred to in subsection (2). (2) If the maintenance officer so requests, the maintenance court may in a summary manner enquire into- (a) the means of the mother of the child as well as the person who is allegedly the father of the child; and (b) the other circumstances which should in the opinion of the maintenance court be taken into consideration. (3) At the conclusion of the enquiry referred to in subsection (2), the maintenance court may- (a) make such provisional order as the maintenance court may think fit relating to the payment of the costs involved in the carrying out of the scientific tests in question, including a provisional order directing the State to pay the whole or any part of such costs; or (b) make no order. (4) When the maintenance court subsequently makes any order under section 16, the maintenance court may- (a) make an order confirming the provisional order referred to in subsection (3) (a); or (b) set aside such provisional order or substitute therefor any order which the maintenance court may consider just relating to the payment of the costs involved in the carrying out of the scientific tests in question.

Costs of Scientific DNA Testing in Child Maintenance Matters

Looking at the aforementioned section, it does not say much about the evidentiary aspect of paternity testing. It basically deals with the costs thereof. However, what is clear is that the Maintenance Court considers issues of paternity disputes and deals with it. Nonetheless, the aforementioned provisions of the Children’s Act would apply to matters in the Maintenance Court. Next, we move on to the issue of whether or not a court can force a party to submit to a paternity test.

Forced or Compelled Paternity Tests

The two pieces of legislation referred to above does not assist us much with regard to the issue of a court forcing a parent to submit to a paternity test. We now need to consider the case law. In other words, what do the courts have to say about this? Most of the older court decisions, do not agree with forcing a parent to submit to a blood/paternity test. However, it seems that things have changed in the past decade. Let us refer to the judgment of LB v YD 2009 (5) SA 463 (T), a Transvaal Provincial Division matter handed down by Judge Murphy less than 10 years ago.  

LB v YD 2009 (5) SA 463 (T).

One of the issues, in this case, was that the mother did not want to submit herself to a blood test. Her view, amongst other things, was that it was not in the child’s best interests. The father argued that it was his right to know whether or not he is the father of the child. He further argued that his right to the certainty of paternity outweighs any inconvenience that might be suffered by the mother and the child. With regard to the law, the Court stated the following: [18] The law on the topic of compulsory blood or DNA testing in parental disputes is not satisfactory. There is no legislation which specifically regulates the position in civil cases. Judicial pronouncements on the topic have not been unanimous in their approach to the issues and have differed on the proper legal basis for ordering tests. In relation to the child the courts have relied on their inherent jurisdiction as upper guardian, while in relation to the non-consenting adult some judges have invoked the inherent jurisdiction of a court to regulate its own procedures while others have refused to do so. In all cases the courts have been mindful of the need on the one hand to protect the privacy and bodily integrity of those to be subjected to tests, but on the other hand have asserted the court’s role to discover the truth whenever possible and to make use of scientific methods for that purpose.   [23] In short, I agree with those judges and commentators who contend that as a general rule the more correct approach is that the discovery of truth should prevail over the idea that the rights of privacy and bodily integrity should be respected – see Kemp ‘Proof of Paternity: Consent or Compulsion’ (1986) 49 THRHR 271 at 279 – 81. I also take the position, and I will return to this more fully later, that it will most often be in the best interests of a child to have any doubts about true paternity resolved  and put beyond doubt by the best available evidence.  

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[47] The present case is one in which a clearing of the air is called for. Both parties have at various times admitted and denied that the applicant is the biological father. The respondent was intimate with a second party, her husband, within the period of possible conception. The child is barely 1 year old and thus there is no established relationship that might be unduly disturbed or harmed by a determination of non-paternity. If  the applicant is established to be the father, the child will benefit in time from knowing the truth and from the applicant’s commitment to her financial wellbeing. The possible stigma of a disputed paternity will also be removed. And, furthermore, legislative safeguards exist for the assignment and monitoring of appropriate parental rights and responsibilities to the applicant, should that prove permissible. I accordingly  consider that it will be in the best interests of the child that paternity be scientifically determined and resolved at this early stage.   [48] I agree that the order sought by the applicant is the one that should be granted. It is ordered as follows:
  1. The respondent is ordered to submit herself and her minor child Y to DNA tests for the purpose of determining whether the applicant is the biological father of the child Y within 30 days of this order.
  2. Prayers 2 and 3 of the notice of motion are postponed sine die.
  3. The applicant is ordered to pay the costs of the tests referred to in D para 1 of this order.
  4. The costs of this application are reserved.

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The numbers in the square brackets denote the number of the paragraph you would find it in the judgment should you decide to make use of it. We agree with Judge Murphy. It is clear that the Courts can and should compel parents and children to submit to a blood test/DNA test when it is in the child’s best interests. Each case is different, and whereby a compelled blood test/DNA test would be warranted in one scenario, it may not be in the other. Nonetheless, with modern technology at our disposal, a simple paternity test is currently less intrusive than it was in the past.            
Posted on by Telelaw

People going through divorces have many questions. Some we can expect, and others are very surprising. Read on to learn more about divorces and the questions people ask.

How much does a divorce cost in South Africa?

The cost of a divorce varies from case to case and client to client. If a divorce is undefended or agreed upon,  then the cost would be significantly low.  However,  should the divorce be contested where the parties cannot agree on the terms of the divorce,  then, under those circumstances, the ultimate cost can be very high. Factors to consider would be how many issues there are to be resolved, the number of court days required, and preparation time. In the end,  the more time that is spent on a divorce matter by lawyers, the more it would cost the client.

Where can I get free legal advice on divorce in South Africa?

There are many places where a person may obtain legal advice on divorces in South Africa.  Some places offer free initial consultations.  Then there are places like the Legal Aid Board or a Legal Resources Centre that would be of assistance at no charge or a minimal fee.  There are also non-governmental organisations and University law clinics that would advise you on a divorce matter at no charge.

What’s the cheapest divorce cost?

There is no need to make use of the services of a lawyer to attend to your divorce.  A person is allowed to attend to his or her divorce in South Africa on his or her own.  The only cost one may incur is Sheriff fees. On the other hand,  there are businesses that  charge a very low fee that would assist you in finalising your divorce. This fee may only relate to the drafting of the court documentation.

Who is the best divorce lawyer in South Africa?

It would be hard to say who is the best divorce lawyer in South Africa. As lawyers’ practice in various cities and provinces,  it may be best to find out which law firms specialise in divorce matters in your area and therefore be able to provide you with quality and reliable legal services. As each legal matter and client is different,  so too would the experiences of lawyers differ. At the end of the day, you would seek a legal representative that has the necessary expertise and knowledge on family law and able to assist you with your legal problem. If the legal practitioner has the time and the willingness to assist you in getting what you are entitled to,  then in our view such a lawyer would be the best lawyer for you under the circumstances.

What are the four main stages of a divorce?

  • Drafting of the summons and having it issued and served;
  • Filing a plea with or without a counterclaim;
  • Preparation for the court hearing; and
  • Trial.

Who pays for a divorce?

The parties usually pay for their own divorce.  The majority of the cost goes to the lawyer. However, the court can order that one party pays for the other party’s costs after the divorce is finalised.

How can I pay my lawyer with no money?

If you do not have money to pay a lawyer for his or her legal services upfront,  you may find out from the lawyer whether or not you may enter into a payment arrangement. The payment arrangement could mean that you pay the lawyer a small portion of the fees at the end of each month. If there is money that you would receive at the end of the divorce,  for example,  due to a pension payout,  then under the circumstances,  the lawyer may agree to be paid later.  If you cannot afford to pay for legal services at all, it is suggested that you still approach the divorce court and ask them to assist you with your divorce or Direct you to a place that would be able to assist you pro bono.

Who can I talk to for free divorce legal advice?

There are many places you can go to for advice on divorce matters. For the first point of call, we suggest the Legal Aid Board,  or a  Law Clinic or a Legal Resources Centre.  You may also want to go online and search for places that provide free legal advice on divorces in South Africa.

How can I talk to a divorce lawyer for free?

If you wish to consult with a lawyer who is a specialist in divorces, you may find one online that would not charge you for the initial consultation. Generally, the initial free consultation would be very short and used to ascertain whether or not the divorce lawyer would be of any assistance to you.  Should you then proceed to make use of the services of a divorce lawyer, a fee would be applicable?

How do you get a divorce if you have no money?

If you do not have any money it would be hard to obtain the services of a divorce lawyer at no fee.  Some divorce lawyers may assist you in providing some legal advice.  However, if you want a lawyer to take your matter further, you may have to consider organisations like the Legal  Aid Board,  Legal Resources Centre,  or a  law clinic.  You may also want to consider searching online for law firms that do pro bono work.

How many years do you have to be separated to be legally divorced in South Africa?

To be legally divorced from your spouse in South Africa, you require a decree of divorce given by a judge or magistrate at the court.  If you are separated from your spouse for any number of years, you still remain married to him or her.  Other than legally divorcing someone, the marriage is also terminated should one of the spouses pass away.

How long does a divorce take on average?

If you and your spouse agree on the terms of your divorce, the divorce can be finalised in a matter of weeks.  However, if the divorce is contested and there are a range of issues in dispute,  the divorce can take many months or even years to finalise.

How do I divorce my wife without losing everything?

What does a person leave with at the end of a divorce would depend upon the matrimonial property regime he or she entered into when getting married.  If the couple was married in community of property,  then at the divorce they would share equally in the division of the joint estate.  If the couple were married out of community of property with the inclusion of the accrual regime,  then in such a case they would share in half the difference of the accrual of their respective Estates. Therefore, should a couple decide to divorce they should spend as little money as possible on fighting over aspects of their marriage which the law already dealt with.  For example, how assets should be divided at the dissolution of the marriage.  It would be a total waste of time to argue over the property if at the end of the day the property would have to be sold and divided equally between the parties.

Are there advantages to filing for divorce first?

There could be certain strategic advantages in filing for divorce first. However, it would depend on the specific circumstances of the case.  Usually, the party that initiates the divorce proceedings would be the one who would be responsible for finalising the divorce process. The same party who initiated divorce proceedings may spend a bit more in legal fees in finalising the divorce.  However, on the whole, when the matter finally gets heard in court the party who initiated divorce proceedings will not be in a better position than the party defending it.

What happens if I lose my job and can’t pay alimony?

If you lost your job and unable to pay alimony you should approach the court to have the maintenance order reduced or set aside. The court would, however, look at various factors, these include your ability to obtain an income and also your assets.

How long can a couple be separated?

A couple may be separated for any amount of time. A long period of separation could signify the irretrievable breakdown of the marriage.

Does it matter who files for divorce first in South Africa?

No,  it does not matter who files for a divorce in South Africa.  The outcome would largely be the same.

Is adultery illegal in South Africa?

For something to be illegal, it should have been criminalised. Adultery is not a crime in South Africa. In relation to divorces, if a party has committed adultery,  it is a reason for a divorce.

What a woman should ask for in a divorce settlement?

There are various things a party may ask for in a divorce settlement.  This is so whether or not you are a male or a female.  However, if you are a female and you are not self-supportive,  then it is suggested that you ask for alimony or personal maintenance in your divorce settlement. If you are on your spouse’s medical aid scheme, we suggest that you ask that you continue to remain on your spouse’s medical aid scheme after the divorce.

What if my husband filed for divorce first?

In principle, there is no difference whether or not a wife or a husband files for divorce first.  If the marriage has broken down irretrievably,  then the sooner a spouse can Institute divorce proceedings,  the sooner the divorce can be finalised.

What can you not do when getting a divorce?

Once a couple divorced, they are no longer married.  Therefore, they may remarry immediately and move on with their lives.  They can purchase property go into debt and so on without the consent of their former spouse.  Therefore, unless the divorce order says otherwise,  a divorced spouse may do anything lawfully which he or she could have done before he or she initially got married.

What is the wife entitled to in a divorce in South Africa?

There is no specific legal provision in our law that affords a wife something after a divorce.  However, what a spouse usually claim if there is a case for it is alimony or personal maintenance after the divorce. If the wife is the one who will have custody over the minor children after the divorce,  she may claim child maintenance and related expenses.

Is spousal maintenance mandatory in South Africa?

Spousal maintenance or alimony is not mandatory in South Africa.  If a spouse wants to claim spousal maintenance or alimony,  he or she must prove to the court that he or she is entitled to it.

Can you date while separated in South Africa?

In South Africa, the law does not prohibit one spouse from dating another person after they have been separated.

Do I get half of my husband’s pension in a divorce?

A spouse would share in the pension of the other spouse if they were married in community of property.  If the parties were married out of community of property with the inclusion of the accrual regime,  then in such a case he or she would be entitled to a portion of the pension when calculating the accrual.

How do I divorce my wife and keep everything?

The only way in which a spouse can divorce the other spouse and keep everything he or she owns is if they were married to each other out of community of property with the exclusion of the accrual regime.  If that was not the case, they would have to share in either the Joint Estate or accrual.

What are the rights of a woman after a divorce?

A spouse’s rights after the divorce would be based upon the divorce decree.  If the divorce decree does not stipulate anything other than a decree of divorce,  then such a spouse would not have any rights against the other spouse except for that regarding minor children.  If the court made an order regarding personal maintenance or alimony then that specific rights would be standing.

Who gets the house in divorce South Africa?

If the house belongs to the joint estate, the couple can agree that it goes to a specific spouse. However, if they cannot agree, then the house would have to be sold and the proceeds divided equally.

Is South Africa a mother or father state when it comes to child custody?

There is no preference for a mother or father when it comes to a divorce. What the court looks at is what is best for the children.

Can a wife take everything in a divorce?

It is possible if the parties agree to it. If not, then one would have to look at the principles applicable to their matrimonial property regime.

How do I protect myself financially from my spouse before getting married?

You would have to ensure that you get married out of community of property. You may consider getting married with the accrual regime or without.

How can I hide money from my husband?

If you are married in community of property, you and your husband would own half shares of everything. This includes debt.

Can you kick your spouse out of the house in South Africa?

No, you cannot. However, you may approach a court of law should there be domestic violence. In such a case, the court may order that the spouse move out.

Who qualifies for alimony in South Africa?

A spouse that does not have an income and that has always been supported by the other spouse may qualify.

Does adultery affect divorce in South Africa?

It is grounds for divorce if it broke down the marriage.

Is a sexless marriage normal?

It depends on the stage of the marriage and the age of the couple. You would need to go for marriage counselling. The counsellor would speak to both you and your spouse and see what the problems are and try to assist you in resolving it. It is important that the couple partakes in meaningful communications and counselling. If one or both of the parties are not interested in resolving the issue, then it is sure to fail.

How do husbands hide money before divorce?

One way is to let another person keep it.

How can you prove someone is hiding their income?

You would have to have documentary proof. If the matter is at court, then you can subpoena the employer.

Why would a man stay in a sexless marriage?

If there is love and a bond beyond sex. You would need to go for marriage counselling. The counsellor would speak to both you and your spouse and see what the problems are and try to assist you in resolving it. It is important that the couple partakes in meaningful communications and counselling. If one or both of the parties are not interested in resolving the issue, then it is sure to fail.

How do you stay faithful in a sexless marriage?

That is up to you. You need to speak to your spouse about the issue and if necessary, seek professional advice. You would need to go for marriage counselling. The counsellor would speak to both you and your spouse and see what the problems are and try to assist you in resolving it. It is important that the couple partakes in meaningful communications and counselling. If one or both of the parties are not interested in resolving the issue, then it is sure to fail.

Can a marriage survive without intimacy?

It would depend on the married couple. However, intimacy is an important aspect of a marriage. You would need to go for marriage counselling. The counsellor would speak to both you and your spouse and see what the problems are and try to assist you in resolving it. It is important that the couple partakes in meaningful communications and counselling. If one or both of the parties are not interested in resolving the issue, then it is sure to fail.

Is once a month a sexless marriage?

You would need to go for marriage counselling. The counsellor would speak to both you and your spouse and see what the problems are and try to assist you in resolving it. It is important that the couple partakes in meaningful communications and counselling. If one or both of the parties are not interested in resolving the issue, then it is sure to fail.

What age does a man stop being sexually active?

You would need to seek medical advice. It would depend on various factors. The health of the parties and also external factors. For example, work issues, or family trauma and so on.

How do you fix a sexless marriage?

You would need to go for marriage counselling. The counsellor would speak to both you and your spouse and see what the problems are and try to assist you in resolving it. It is important that the couple partakes in meaningful communications and counselling. If one or both of the parties are not interested in resolving the issue, then it is sure to fail.

How can I save my wife’s house?

You have to pay the bond and all expenses.

What if my wife doesn’t want a divorce?

If your spouse does not want a divorce, the court can still grant it if the marriage broke down.

What are my rights in a divorce?

Your right in the divorce would be to obtain any funds you are entitled to base on your matrimonial property regime as well as alimony if you are entitled to it.

How is spousal support calculated in South Africa?

To determine the amount of spousal support,  one would need to look at the expenses of the spouse claiming alimony and the income and assets of the party paying the alimony.

How is debt divided in a divorce in South Africa?

If the parties were married to each other in community of property, they both would be responsible for the debt in equal shares.  A creditor may, however, proceed against any of the spouses for the Dead and the specific spouse who paid it may claim half the debt from the other spouse.

Who pays attorney fees in divorce in South Africa?

A party to divorce proceedings will have to pay for his or her attorney fees.

What is considered an unfit parent in South Africa?

In short, an unfit parent is a parent who unreasonably neglects the child.

What is considered legally separated in South Africa?

In South Africa, the only form of dissolution of a marriage is done via a divorce.  Therefore, for a couple to be legally separated, they need to obtain a decree of divorce from the court.

Can you go to jail if you don’t pay alimony?

Yes, someone can go to jail if he or she refuses to pay alimony in terms of a court order.  However due process first has to follow.

Is not paying alimony a crime?

If the divorce court ordered you to pay alimony or personal maintenance to your former spouse and you failed to do so,  you are committing a criminal offence.

How do you know if a divorce is final?

A divorce is only final once a judge granted a decree of divorce.  This you can ascertain by visiting the divorce court and asking them to provide you with the contents of the divorce file.

How much does the average divorce lawyer cost?

Divorce lawyer fees vary from city to city and based upon their legal experiences.  You may find a junior divorce lawyer charging a fee of R 500 per hour and a senior divorce lawyer charging a fee in excess of R 2000 – 00.  It all depends on the lawyer and his or her years of experience and the complication of your case.

What happens when a divorce is filed?

From a legal point of view when one party files for a divorce everything that usually applies for the marriage still continues.  The only time where they are legal consequences is when a court makes such an order.  Therefore, even if one party instituted divorce for the seedings it does not mean a spouse can disregard their matrimonial property regime or get married to someone else.

How do I leave my husband without a divorce?

In South Africa, a divorce is the only manner in which to end a marriage.  If you and your spouse are separated even for a very long time you are still married to each other.  Therefore, either spouse may marry another person.  Moreover, if both parties are no longer interested in remaining married,  then, under those circumstances, it is advised that they seek a divorce decree.

How do you bounce back financially after a divorce?

It is important that once a party decided to divorce, he or she needs to think about life post the divorce sooner than later.  Therefore, a party should not wait until he or she is divorced before looking for work or trying to financially secure him or her.

Should I file for divorce or let him?

If the marriage has broken down irretrievably and there are no prospects of the restoration of a normal marital relationship, then we advise you to proceed with divorce proceedings as soon as possible.
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What do I do if I am not happy with the maintenance court judgment? Is it possible to appeal it? If yes, what are the steps and laws involved?

  Child maintenance or child support is the right of every child. It is not only a legal right, but a moral duty on all parents to adequately care and provide for their children. Unfortunately, not all parents uphold their duty and responsibility to adequately maintain their offspring. This is a very sad reality. If this is the case, a parent having primary care needs to approach the Maintenance Court for a Maintenance Order against the other parent. This would force the parent neglecting his or her child to pay child support. You may also consider reading the following articles on maintenance court appeals: What do I do if I am not happy with the maintenance court’s ruling? Is it possible to appeal the decision? Successful Child Maintenance Appeal before the Full Bench Argued by Adv M Abduroaf

Options parents have when it comes to claiming and enforcing child maintenance orders

If a maintenance order has been made, and a parent against whom the order was made does not comply with its provisions, then the law would step in. A parent having primary care can follow the civil route and attach the other parent’s salary, property etc. Or the criminal route can be followed where the other parent faces possible imprisonment. However, what does a parent do, if a Maintenance Order has been granted, and he or she is not happy with it? This is what this article deals with – Appealing maintenance orders granted by the Maintenance Court. We are not dealing with Maintenance Orders that were granted by the Divorce Court (High Court or Magistrates’ Court).

How are Maintenance Orders made in the maintenance court?

A parent would apply for a maintenance order at the Maintenance Court. The court would then notify the other parent to appear in the Maintenance Court. Various Maintenance Courts follow different procedures in notifying parents. Some use subpoenas, other send letters, and others use emails. Thereafter, the parents would first meet with a maintenance officer to discuss the complaint and an enquiry is held. The parents would present all their income and expenses and the maintenance officer would try to resolve the matter. Resolving the matter would be first prize for both parents. However, matters are not always resolved at this first sitting. Therefore, in short, Maintenance Orders are made as follows:
  • The parties agree on a maintenance order with the assistance of a Maintenance Officer, and it is made an order of Court. A consent form is therefore signed and made an order of Court. Everyone is happy; or
  • The parties cannot agree on a maintenance order, and the court decides what the terms of the order should be. This is the long route, but necessary if one or both parties are being unreasonable.

The parent is unhappy with the maintenance court’s decision

If a parent is not happy with the order the court made, then he or she may appeal the Maintenance Order. Basically, what this means, is that a higher court would decide whether the maintenance court made the correct decision. In this case, the higher court would be the High Court. If the maintenance matter was heard in Cape Town, it would then be the Western Cape High Court. As you would see below, the procedure is cumbersome. The entire court record would have to be typed out and read by the High Court Judges.

Procedures to follow when wanting to appeal a Maintenance Court decision

When appealing a maintenance court decision, one needs to look at the Magistrates’ Court Rules, as well as the High Court Rules. This is so as the maintenance matter was heard by a magistrate and the court hearing the appeal is the High Court. We inserted both sets of rules below which you can follow should you wish to appeal a maintenance court decision.

Magistrates’ Court Rule on Appeals

Appeals in civil cases
  1. (1) Upon a request in writing by any party within 10 days after judgment and before noting an appeal the judicial officer shall within 15 days hand to the registrar or clerk of the court a judgment in writing which shall become part of the record showing-
  • the facts he or she found to be proved; and
  • his or her reasons for judgment.
(2) The registrar or clerk of the court shall on receipt from the judicial officer of a judgment in writing supply to the party applying therefor a copy of such judgment and shall endorse on the original minutes of record the date on which the copy of such judgment was so supplied. (3) An appeal may be noted within 20 days after the date of a judgment appealed against or within 20 days after the registrar or clerk of the court has supplied a copy of the judgment in writing to the party applying therefor, whichever period shall be the longer. (4) An appeal shall be noted by the delivery of notice, and, unless the court of appeal shall otherwise order, by giving security for the respondent’s costs of appeal to the amount of R1000: Provided that no security shall be required from the State or, unless the court of appeal otherwise orders, from a person to whom legal aid is rendered by a statutorily established legal aid board. (5) Money paid into court under subrule (4) and outstanding for more than three years, may be paid into the State Revenue Fund, after three months’ notice of such intention in writing has been given to the parties concerned, whereafter the parties concerned may apply for a refund of the amount paid into the said Fund. (6) A cross-appeal shall be noted by the delivery of notice within 10 days after the delivery of the notice of appeal. (7) A notice of appeal or cross-appeal shall state- (a) whether the whole or part only of the judgment is appealed against, and if part only, then what part; and (b) the grounds of appeal, specifying the findings of fact or rulings of law appealed against. (8) (a) Upon the delivery of a notice of appeal the relevant judicial officer shall within 15 days thereafter hand to the registrar or clerk of the court a statement in writing showing (so far as may be necessary having regard to any judgment in writing already handed in by him or her)-
  • the facts he or she found to be proved;
  • the grounds upon which he or she arrived at any finding of fact specified in the notice of appeal as appealed against; and
  • his or her reasons for any ruling of law or for the admission or rejection of any evidence so specified as appealed against.
(b) A statement referred to in paragraph (a) shall become part of the record. (c) This rule shall also, so far as may be necessary, apply to a cross-appeal. (9) A party noting an appeal or a cross-appeal shall prosecute the same within such time as may be prescribed by rule of the court of appeal and, in default of such prosecution, the appeal or cross-appeal shall be deemed to have lapsed, unless the court of appeal shall see fit to make an order to the contrary. (10) Subject to rule 50 of the Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa, the registrar or clerk of the court shall, within 15 days after he or she receives notice that an appeal has been set down for hearing, transmit to the registrar of the court of appeal the record in the action duly certified. (11) (a) A respondent desiring to abandon the whole or any part of a judgment appealed against may do so by the delivery of a notice in writing stating whether he or she abandons the whole, or if part only, what part of such judgment. (b) Every notice of abandonment in terms of paragraph (a) shall become part of the record. (12) Where the parties agree in terms of section 82 of the Act that the decision of the court shall be final, either party may lodge the memorandum of such agreement with the registrar or the clerk of the court, and such memorandum shall thereupon become part of the record in the action or matter. Now let us refer you to the relevant sections of the High Court Rules.

High Court Rule in relation to Appeals from the Maintenance Court

50 Civil Appeals from Magistrates’ Courts (1) An appeal to the court against the decision of a magistrate in a civil matter shall be prosecuted within 60 days after the noting of such appeal, and unless so prosecuted it shall be deemed to have lapsed. (2) The prosecution of an appeal shall ipso facto operate as the prosecution of any cross-appeal which has been duly noted. (3) If a cross-appeal has been noted, and the appeal lapses, the cross-appeal shall also lapse, unless application for a date of hearing for such cross-appeal is made to the registrar within twenty days after the date of the lapse of such appeal. (4) (a) The appellant shall, within 40 days of noting the appeal, apply to the registrar in writing and with notice to all other parties for the assignment of a date for the hearing of the appeal and shall at the same time make available to the registrar in writing his full residential and postal addresses and the address of his attorney if he is represented. (b) In the absence of such an application by the appellant, the respondent may at any time before the expiry of the period of 60 days referred to in subrule (1) apply for a date of hearing in like manner. (c) Upon receipt of such an application from appellant or respondent, the appeal shall be deemed to have been duly prosecuted. (5) (a) Upon receipt of such application, the registrar shall forthwith assign a date of hearing, which date shall be at least 40 days after the receipt of the said application, unless all parties consent in writing to an earlier date: Provided that the registrar shall not assign a date of hearing until the provisions of subrule (7) (a), (b), and (c) have been duly complied with. (b) The registrar shall forthwith give the applicant written notice of the date of hearing, whereupon the applicant shall forthwith deliver a notice of set down and in writing give notice thereof to the clerk of the court from which the appeal emanated. (6) A notice of set down of a pending appeal shall ipso facto operate as a set down of any cross-appeal and vice versa. (7) (a) The applicant shall simultaneously with the lodging of the application for a date for the hearing of the appeal referred to in subrule (4) lodge with the registrar two copies of the record: Provided that where such an appeal is to be heard by more than two judges, the applicant shall, upon the request of the registrar, lodge a further copy of the record for each additional judge. (b) Such copies shall be clearly typed on foolscap paper in double spacing, and the pages thereof shall be consecutively numbered and as from second January 1968, such copies shall be so typed on A4 standard paper referred to in rule 62 (2) or on foolscap paper and after expiration of a period of twelve months from the aforesaid date on such A4 standard paper only. In addition every tenth line on each page shall be numbered. (c) The record shall contain a correct and complete copy of the pleadings, evidence and all documents necessary for the hearing of the appeal, together with an index thereof, and the copies lodged with the registrar shall be certified as correct by the attorney or party lodging the same or the person who prepared the record. (d) The party lodging the copies of the record shall not less than fifteen days prior to the date of the hearing of the appeal also furnish each of the other parties with two copies thereof, certified as aforesaid. (8) (a) Save in so far as these affect the merits of an appeal, subpoenas, notices of trial, consents to postponements, schedules of documents, notices to produce or inspect, and other documents of a formal nature shall be omitted from the copies of the record prepared in terms of the aforegoing subrule. A list thereof shall be included in the record. (b) (i) With the written consent of the parties any exhibit or other portion of the record which has no bearing on the point in issue on appeal may be omitted from the record. (ii) If a portion has been so omitted from the record, the written consent signed by or on behalf of the parties and noting the omission shall be filed, together with the incomplete record, with the Registrar. (iii) Notwithstanding the provisions of subparagraphs (i) and (ii) the court hearing the appeal may at any time request the complete original record and take cognisance of everything appearing therein. (c) When an appeal is to be decided exclusively on a point of law, the parties may agree to submit such appeal to the court in the form of a special case, as referred to in rule 33 of the Rules, in which event copies may be submitted to the court of such portions only of the record which in the opinion of the parties may be necessary for a proper decision of the appeal: Provided that the court hearing the appeal may request that the entire original record of the case be placed before the court. (9) Not less than fifteen days before the appeal is heard the appellant shall deliver one copy of a concise and succinct statement of the main points (without elaboration) which he intends to argue on appeal, as well as a list of the authorities to be tendered in support of each point, and not less than ten days before the appeal is heard the respondent shall deliver a similar statement. Three additional copies shall be lodged with the registrar in each case. (10) Notwithstanding the provisions of this rule the judge president may, in consultation with the parties concerned, direct that a contemplated appeal be dealt with as an urgent matter and order that it be disposed of, and the appeal be prosecuted, at such time and in such manner as to him seems meet.

Final Words on Appeals in Maintenance Court Matters

From the above, it is clear that one does not have to just accept a decision of a Magistrate in a Maintenance Matter. There is always the option to appeal his or her decision. You may consider reading the following articles on maintenance court appeals: What do I do if I am not happy with the maintenance court’s ruling? Is it possible to appeal the decision? Successful Child Maintenance Appeal before the Full Bench Argued by Adv M Abduroaf 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  
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