30 May 2020 – Latest Regulations on the movement of minor children during the lockdown – The introduction of the Magistrate’s Permit

The Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini Zuma, published new regulations regarding the Lockdown on 29 April 2020. As from 1 May 2020, South Africa’s lockdown would be on Level 4, one level down from when it started. The new regulations bring challenging changes regarding the movement of children between parents. For example, the provision of applying for a Magistrate’s permit. Therefore, some of the new regulations are welcomed by us, and others not. The regulations are further below. Click here to read an article regarding the previous regulations on the movement of children.

Summary of the recent regulations that will come in effect tomorrow 1 May 2020:

Local movement of children during the lockdown

Movement of Children may only take place in the same metropolitan area or district municipality if the co-holders of parental responsibilities and rights or a caregiver is: (a) in possession of a Court Order; or (b) a parental responsibilities and rights agreement or parenting plan, registered with the family advocate; or (c) a permit issued by a magistrate which corresponds with Form 3 of Annexure A if the latter documentation is not available; and (d) The household to which the child has to move must be free of COVID-19. Before a magistrate may issue a permit, he or she must be provided with a birth certificate or certified copy of a birth certificate of the child or children to prove a legitimate relationship between the co-holders of parental responsibilities and rights. Furthermore, written reasons as to why the movement of the child is necessary must be provided. In our view, the permit application is a step back. This we say as previously there was no need for the application for a permit. The courts would be inundated with such applications. Producing a birth certificate as previously required should have continued.

Inter-Provincial movement of children during the National lockdown

The regulations now allow for a once-off movement of children between provinces during the lockdown. It states: “Any child who was not at the residence of their primary caregiver before the lockdown period and who could not travel between provinces, metropolitan and district areas during the lockdown will be permitted, on a once-off basis, to return to the residence of their primary caregiver if the co-holders of parental responsibilities and rights or a caregiver is in possession of a permit issued by a magistrate which corresponds with Form 3 of annexure A.” Before a magistrate issues a permit, he or she must be provided with: (a) a court order; or (b) a parental responsibilities and rights agreement or parenting plan registered with the family advocate; or (c) a birth certificate or certified copy of a birth certificate of the child or children to prove a legitimate relationship between the co-holders of parental responsibilities and rights, and (d) written reasons why the movement of the child is necessary. Furthermore, the household to which the child has to move must be free of COVID-19. Click here to read an article regarding the previous regulations on the movement of children.

Below are the relevant regulations and the relevant form the Magistrate must provide. Movement of children

(1) The movement of children between co-holders of parental responsibilities and rights or a caregiver, as defined in section 1(1) of the Children’s Act, 2005 (Act No. 38 of 2005), in the same metropolitan area or district municipality is allowed subject to the following if the co-holders of parental responsibilities and rights or a caregiver is in possession of—

(a) a court order; or (b) a parental responsibilities and rights agreement or parenting plan, registered with the family advocate (c) a permit issued by a magistrate where which corresponds with Form 3 of Annexure A if the documentation in paragraphs (a) and (b) is not available. (2) The movement of children between co-holders of parental responsibilities and rights or a caregiver, as defined in section 1(1) of the Children’s Act, 2005 (Act No. 38 of 2005), between different metropolitan areas, district municipalities or provinces is allowed if the co-holders of parental responsibilities and rights or a caregiver is in possession of a permit, issued by a magistrate which corresponds with Form 3 of Annexure A. (3) Any child who was not at the residence of their primary caregiver before the lockdown period and who could not travel between provinces, metropolitan and district areas during the lockdown will be permitted, on a once-off basis, to return to the residence of their primary caregiver if the co-holders of parental responsibilities and rights or a caregiver is in possession of a permit issued by a magistrate which corresponds with Form 3 of annexure A. (4) The household to which the child has to move, must be free of COVID-19. (5) (a) Before a magistrate issues a permit referred to in regulation 17(1)(c), he or she must be provided with— (i) birth certificate or certified copy of a birth certificate of the child or children to prove a legitimate relationship between the co-holders of parental responsibilities and rights; and (ii) written reasons why the movement of the child is necessary. (b) Before a magistrate issues a permit referred to in 17(2) or (3), he or she must be provided with— (i) A court order (ii) a parental responsibilities and rights agreement or parenting plan registered with the family advocate or (iii) a birth certificate or certified copy of a birth certificate of the child or children to prove a legitimate relationship between the co-holders of parental responsibilities and rights; and (iv) written reasons why the movement of the child is necessary.

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Permit issued by a Magistrate for the movement of children during the lockdown[/caption] 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

Click here to read an article regarding the previous regulations on the movement of children.

Posted on 11 February 2025 by Telelaw

30 May 2020 – Latest Regulations on the movement of minor children during the lockdown – The introduction of the Magistrate’s Permit

The new regulations bring challenging changes regarding the movement of children between parents. For example, the provision of applying for a Magistrate’s permit. Therefore, some of the new regulations are welcomed by us, and others not. The regulations are further below.

Click here to read an article regarding the previous regulations on the movement of children.

Summary of the recent regulations that will come in effect tomorrow 1 May 2020:

Local movement of children during the lockdown

Movement of Children may only take place in the same metropolitan area or district municipality if the co-holders of parental responsibilities and rights or a caregiver is:

(a) in possession of a Court Order; or

(b) a parental responsibilities and rights agreement or parenting plan, registered with the family advocate; or

(c) a permit issued by a magistrate which corresponds with Form 3 of Annexure A if the latter documentation is not available; and

(d) The household to which the child has to move must be free of COVID-19.

Before a magistrate may issue a permit, he or she must be provided with a birth certificate or certified copy of a birth certificate of the child or children to prove a legitimate relationship between the co-holders of parental responsibilities and rights. Furthermore, written reasons as to why the movement of the child is necessary must be provided.

In our view, the permit application is a step back. This we say as previously there was no need for the application for a permit. The courts would be inundated with such applications. Producing a birth certificate as previously required should have continued.

Inter-Provincial movement of children during the National lockdown

The regulations now allow for a once-off movement of children between provinces during the lockdown. It states:

“Any child who was not at the residence of their primary caregiver before the lockdown period and who could not travel between provinces, metropolitan and district areas during the lockdown will be permitted, on a once-off basis, to return to the residence of their primary caregiver if the co-holders of parental responsibilities and rights or a caregiver is in possession of a permit issued by a magistrate which corresponds with Form 3 of annexure A.”

Before a magistrate issues a permit, he or she must be provided with:

(a) a court order; or

(b) a parental responsibilities and rights agreement or parenting plan registered with the family advocate; or

(c) a birth certificate or certified copy of a birth certificate of the child or children to prove a legitimate relationship between the co-holders of parental responsibilities and rights, and

(d) written reasons why the movement of the child is necessary.

Furthermore, the household to which the child has to move must be free of COVID-19.

Click here to read an article regarding the previous regulations on the movement of children.

Below are the relevant regulations and the relevant form the Magistrate must provide.

Movement of children

(1) The movement of children between co-holders of parental responsibilities and rights or a caregiver, as defined in section 1(1) of the Children’s Act, 2005 (Act No. 38 of 2005), in the same metropolitan area or district municipality is allowed subject to the following if the co-holders of parental responsibilities and rights or a caregiver is in possession of—

(a) a court order; or

(b) a parental responsibilities and rights agreement or parenting plan, registered with the family advocate

(c) a permit issued by a magistrate where which corresponds with Form 3 of Annexure A if the documentation in paragraphs (a) and (b) is not available.

(2) The movement of children between co-holders of parental responsibilities and rights or a caregiver, as defined in section 1(1) of the Children’s Act, 2005 (Act No. 38 of 2005), between different metropolitan areas, district municipalities or provinces is allowed if the co-holders of parental responsibilities and rights or a caregiver is in possession of a permit, issued by a magistrate which corresponds with Form 3 of Annexure A.

(3) Any child who was not at the residence of their primary caregiver before the lockdown period and who could not travel between provinces, metropolitan and district areas during the lockdown will be permitted, on a once-off basis, to return to the residence of their primary caregiver if the co-holders of parental responsibilities and rights or a caregiver is in possession of a permit issued by a magistrate which corresponds with Form 3 of annexure A.

(4) The household to which the child has to move, must be free of COVID-19.

(5) (a) Before a magistrate issues a permit referred to in regulation 17(1)(c), he or she must be provided with—

(i) birth certificate or certified copy of a birth certificate of the child or children to prove a legitimate relationship between the co-holders of parental responsibilities and rights; and (ii) written reasons why the movement of the child is necessary.

(b) Before a magistrate issues a permit referred to in 17(2) or (3), he or she must be provided with—

(i) A court order

(ii) a parental responsibilities and rights agreement or parenting plan registered with the family advocate or

(iii) a birth certificate or certified copy of a birth certificate of the child or children to prove a legitimate relationship between the co-holders of parental responsibilities and rights; and

(iv) written reasons why the movement of the child is necessary.

Permit issued by a Magistrate for the movement of children during the lockdown

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Business SA | Private Legal | Envirolaws

Click here to read an article regarding the previous regulations on the movement of children.

Do you own Divorce (DIY) No lawyers needed!
If you want to get divorced from your spouse, I strongly advise that your approach a legal practitioner, or an attorney to attend to it on your behalf. This I would implore even more under the following circumstances:
There will be a dispute over care and visitation rights over the child/children
One of the parties will be applying for forfeiture of patrimonial benefits from a marriage in community of property;
The joint estate is huge or complicated; or
The other party will be making use of legal representation.
If, however, you would like to know the general procedures on how to go about a divorce, they are listed summarily below. There are many rules that regulate divorce processes and the summary below does exclude certain of them. These include exceptions, strikeouts, compelling compliance, service addresses etc. Other matters incidental to divorce proceedings, e.g. interim arrangements, pending the divorce regarding maintenance for you or your children and care and contact regarding children are not dealt with. Therefore, please consult a legal practitioner or the divorce court throughout your divorce process should you decide to do the divorce yourself.

Summons and Particulars of Claim

A summons needs to be drafted which will be issued by the divorce court to commence the divorce process. It should have on it the details of the court you will be issuing divorce, details of the parties, e.g. names, occupation, and address etc. Every High Court in the area where you live has the authority to attend to a divorce. There are however specialized divorce courts that may attend to a divorce as well. You should then draft particulars of claim, outlining relevant matters concerning the marriage, children, reasons for wanting a divorce and what do you want the court to grant you in a divorce order. These particulars of claim you attach to the summons. Here is an example of a summons and particulars of claim for a divorce for a couple married in community of property with no children getting a divorce in the High Court in Cape Town.

Summons

IN THE HIGH COURT OF South Africa CASE NO.: (Western Cape High Court, Cape Town) In the matter between: John Smith (Plaintiff) And Jane Smith (Defendant) To the Sheriff or his/her Deputy INFORM Jane Smith (hereinafter referred to as the defendant an adult female, self-employed as a singer currently residing at 12 Club Road, Waterfront, Western Cape and whose full and further particulars are unknown, That: John Smith (hereafter referred to as the plaintiff), an adult male self-employed painter residing at Garden Road, Cape Town, Western Cape, Hereby institutes an action against her in which action the Plaintiff claims the relief and on the grounds set out in the particulars annexed hereto marked A. INFORM the Defendant further that if she disputes the claim and wishes to defend the action she shall (a) within 10 (TEN) days after the service upon her of this Summons, file with the Registrar of this Court at Kieron Street, Cape Town a notice of her intention to defend, and serve a copy thereof on the Plaintiff, on which notice shall be given an address (not being a post office or poste restante) referred to in Rule 19(3) for the service upon the Defendant of all notices and documents in the action; and (b) thereafter, and within 21 (TWENTY-ONE) court days after the filing and serving such notice of intention to defend as aforesaid, file with the Registrar and serve upon the Plaintiff a Plea, Exception, Notice to strike out, with or without a counterclaim. INFORM the Defendant further that if she fails to file and serve notice as aforesaid, judgment as claimed may be given against her without further notice to her, or if having filed and served such notice, she fails to plead, except, make application to strike out or counterclaim, judgment may be given against her. INFORM the Defendant also that if she does not intend to defend the action, she will inform the Registrar in writing to enable the Registrar to, on request in writing from Plaintiff, immediately set the matter down for hearing. AND IMMEDIATELY THEREAFTER serve on the Defendant a copy of this Summons and return same with whatsoever you have done thereupon. DATED AT CAPE TOWN ON THIS ____ THE DAY OF _________2018. ……………………………………………………………… REGISTRAR OF THE HIGH COURT ……………………………………………………………… Plaintiff in Person __________________________

Particulars of Claim “A”

(A) Parties Plaintiff is John Smith, an adult male Bus Driver, residing at no. 5 Truck Apartments, Cape Town, Western Cape. The defendant is Jane Smith (born Smit) an adult female, employed as a hairdresser, residing at Hectic House, 2 Main Road, Strand, Western Cape.

(B) Marriage

Plaintiff and Defendant (hereafter referred to together as “the Parties”) married each other on 10 August 2003 at Pretoria, in community of property and the marriage still subsists. Kindly find attached hereto a copy of the marriage certificate marked “MC”. The Parties are domiciled within the area of jurisdiction of this honourable court. There are no children born out of the marriage.

(C) Irretrievable breakdown

The marriage between the Parties has irretrievably broken down and there are no reasonable prospects of the restoration of a normal marital relationship between them in that: Defendant left the common home approximately 2 years ago; There is no love and affection, understanding and communication between the parties; The Parties are incompatible and continue arguing; and Plaintiff has a gambling problem.

(D) Prayer

WHEREFORE Plaintiff prays for Judgement against Defendant in the following terms: A decree of divorce; Each party retain the property in his or her possession as his or her sole property; Cost if this action is opposed; and Further and/ or alternative relief. DATED AT CAPE TOWN ON THIS THE ______ DAY OF______ 2018. _____________________________ Per: John Smith (Plaintiff in Person) Service Address Once you have your summons and particulars of claim in order, make three (3) copies of your set of documents and have it issued at court.

Issuing & Service of Summons

Once you are at the court, go to the clerk of the court and have your documents issued. The clerk will sign the summons and provide a case number and write it on the summons. You should then take the original and a copy (both must be signed and stamped by the clerk of the court) and take it to the sheriff which serves documents where your spouse works of lives. You can ask the clerk of the court for that details. The extra—copy of the summons & particulars of claim you keep for your file and records.

Notice of intention to defend

Once the sheriff has served the documents, your spouse has a defined period to inform your whether he or she will be defending the divorce. This information is outlined in the summons as shown above.

Plea to particulars of claim

Once you received notice of your spouse’s intention to defend the divorce, about a months later, your spouse or their attorney will serve and file a plea. The plea will outline which parts of your particulars of claim your spouse agrees (or disagree) with which would give a direction of what to prove in court.

Counter Claim

Your spouse might want to file a counterclaim. In the same way, which you outlined your case as to what you want from the court and the reasons therefore in your particulars of claim, your spouse can file on your as well a counterclaim. A counterclaim might still be filed if your spouse agrees to a divorce, by maybe wants care of the children, but in your particulars of claim, you asked for care. You should then within 10 (ten) days plead to the counterclaim the same manner in which your spouse pleaded to your particulars of claim.

Obtaining a Trial date

Once you received the plea, without a counterclaim, or have pleaded to your spouse’s counterclaim, you should then approach the clerk of the court for a trial date. This you or your spouse may do.

Discovery

While you waiting for a trial date, and way before the trial, you may ask or may be asked to provide, under oath, a schedule of books and documents in your possession and under your control relating to the divorce. This could be policy documents, deeds etc, and which you or your spouse might want to make use of at trial. Once you received this schedule you may inspect and request copies of the documents.

Divorce day / Trial

If your spouse does not defend the divorce within the time period, go back to court and ask for an unopposed divorce date and attend to your divorce on that date. If, however, your divorce is defended, a trial will ensure. During the trial, each party will prove his or her case. Witnesses will be called and at the end, the Magistrate or Judge will deliver the verdict. Best of luck, and please, don’t take my word, contact a legal practitioner should you decide to get divorced.

Sharing is Caring

This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share. Should you require any other legal services and advice, not related to family law, visit Private Legal.

Posted on 11 February 2025 by Telelaw

What to know when wanting to appeal a High Court Judgment?

Everyone has a right to take a matter to a court of law. At the same time, everyone has a right to challenge a decision of a judicial officer. We all make mistakes and a judicial officer is no different. This article deals with the court rules relating to appeals from decisions emanating in the High Court. Therefore, should you wish to appeal a decision of a Judge in the High Court, have a look at the High Court rules below. When dealing with Appeals in the High Court, one looks at the Uniform Rules, or RULES REGULATING THE CONDUCT OF THE PROCEEDINGS OF THE SEVERAL PROVINCIAL AND LOCAL DIVISIONS OF THE HIGH COURT OF SOUTH AFRICA. The Rules are amended from time to time. Rule 49 deals with Civil appeals from the High Court. It is copied below.

49 Civil Appeals from the High Court

(1) (a) When leave to appeal is required, it may on a statement of the grounds therefor be requested at the time of the judgment or order. (b) When leave to appeal is required and it has not been requested at the time of the judgment or order, application for such leave shall be made and the grounds therefor shall be furnished within fifteen days after the date of the order appealed against: Provided that when the reasons or the full reasons for the court’s order are given on a later date than the date of the order, such application may be made within fifteen days after such later date: Provided further that the court may, upon good cause shown, extend the aforementioned periods of fifteen days. (c) When in giving an order the court declares that the reasons for the order will be furnished to any of the parties on application, such application shall be delivered within ten days after the date of the order. (d) The application mentioned in paragraph (b) above shall be set down on a date arranged by the registrar who shall give written notice thereof to the parties. (e) Such application shall be heard by the judge who presided at the trial or, if he is not available, by another judge of the division of which the said judge, when he so presided, was a member. (2) If leave to appeal to the full court is granted the notice of appeal shall be delivered to all the parties within twenty days after the date upon which leave was granted or within such longer period as may upon good cause shown be permitted. (3) The notice of appeal shall state whether the whole or part only of the judgment or order is appealed against and if only part of such judgment or order is appealed against, it shall state which part and shall further specify the finding of fact and/or ruling of law appealed against and the grounds upon which the appeal is founded. (4) A notice of cross-appeal shall be delivered within ten days after delivery of the notice of appeal or within such longer period as may upon good cause shown be permitted and the provisions of these Rules with regard to appeals shall mutatis mutandis apply to cross-appeals. (5) In the case of an appeal against the judgment or order of the court of the Witwatersrand Local Division, the judge president of the Transvaal Provincial Division shall determine whether the appeal should be heard by the full court of the said local division. As soon as possible after receipt of the notice of appeal or cross-appeal, if any, the registrar of the local division shall ascertain from the judge president his direction in the particular case. If the judge president has directed that the appeal be heard by the full court of the Witwatersrand Local Division, the said registrar shall immediately inform the parties of the direction. If not so directed by the judge president, the said registrar shall inform the registrar of the provincial division as well as the parties accordingly. (6) (a) Within sixty days after delivery of a notice of appeal, an appellant shall make written application to the registrar of the division where the appeal is to be heard for a date for the hearing of such appeal and shall at the same time furnish him with his full residential address and the name and address of every other party to the appeal and if the appellant fails to do so a respondent may within ten days after the expiry of the said period of sixty days, as in the case of the appellant, apply for the set down of the appeal or cross-appeal which he may have noted. If no such application is made by either party the appeal and cross-appeal shall be deemed to have lapsed: Provided that a respondent shall have the right to apply for an order for his wasted costs. (b) The court to which the appeal is made may, on application of the appellant or cross-appellant, and upon good cause shown, reinstate an appeal or cross-appeal which has lapsed. (7) (a) At the same time as the application for a date for the hearing of an appeal in terms of subrule (6) (a) of this rule the appellant shall file with the registrar three copies of the record on appeal and shall furnish two copies to the respondent. The registrar shall further be provided with a complete index and copies of all papers, documents and exhibits in the case, except formal and immaterial documents: Provided that such omissions shall be referred to in the said index. If the necessary copies of the record are not ready at that stage, the registrar may accept an application for a date of hearing without the necessary copies if- (i) the application is accompanied by a written agreement between the parties that the copies of the record may be handed in late; or (ii) failing such agreement, the appellant delivers an application together with an affidavit in which the reasons for his omission to hand in the copies of the record in time are set out and in which is indicated that an application for condonation of the omission will be made at the hearing of the appeal. (b) The two copies of the record to be served on the respondent shall be served at the same time as the filing of the aforementioned three copies with the registrar. (c) After delivery of the copies of the record, the registrar of the court that is to hear the appeal or cross-appeal shall assign a date for the hearing of the appeal or for the application for condonation and appeal, as the case may be, and shall set the appeal down for hearing on the said date and shall give the parties at least twenty days’ notice in writing of the date so assigned. (d) If the party who applied for a date for the hearing of the appeal neglects or fails to file or deliver the said copies of the record within 40 days after the acceptance by the registrar of the application for a date of hearing in terms of subrule (7) (a) the other party may approach the court for an order that the application has lapsed. (8) (a) Copies referred to in subrule (7) shall be clearly typed on A.4 standard paper in double spacing, paginated and bound and in addition every tenth line on every page shall be numbered. (b) The left side of each page shall be provided with a margin of at least 35 mm that shall be left clear, except in the case of exhibits that are duplicated by photoprinting, where it is impossible to obtain a margin with the said dimensions. Where the margin of the said exhibits is so small that parts of the documents will be obscured by binding, such documents shall be mounted on sheets of A4 paper and folded back to ensure that the prescribed margin is provided. (9) By consent of the parties, exhibits and annexures having no bearing on the point at issue in the appeal and immaterial portions of lengthy documents may be omitted. Such consent, setting out what documents or parts thereof have been omitted, shall be signed by the parties and shall be included in the record on appeal. The court hearing the appeal may order that the whole of the record be placed before it.

(10) When the decision of an appeal turns exclusively on a point of law, the parties may agree to submit such appeal to the court in the form of a special case, in which event copies shall be submitted of only such portions of the record as may be necessary for a proper decision of the appeal: Provided that the court hearing the appeal may require that the whole of the record of the case be placed before it. (11) Where an appeal has been noted or an application for leave to appeal against or to rescind, correct, review or vary an order of a court has been made, the operation and execution of the order in question shall be suspended, pending the decision of such appeal or application, unless the court which gave such order, on the application of a party, otherwise directs. (12) If the order referred to in subrule (11) is carried into execution by order of the court the party requesting such execution shall, unless the court otherwise orders, before such execution enter into such security as the parties may agree or the registrar may decide for the restitution of any sum obtained upon such execution. The registrar’s decision shall be final. (13) (a) Unless the respondent waives his or her right to security or the court in granting leave to appeal or subsequently on application to it, has released the appellant wholly or partially from that obligation, the appellant shall, before lodging copies of the record on appeal with the registrar, enter into good and sufficient security for the respondent’s costs of appeal. (b) In the event of failure by the parties to agree on the amount of security, the registrar shall fix the amount and the appellant shall enter into security in the amount so fixed or such percentage thereof as the court has determined, as the case may be. (14) The provisions of subrules (12) and (13) shall not be applicable to the Government of the Republic of South Africa or any provincial administration. (15) Not later than fifteen days before the appeal is heard the appellant shall deliver 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 later than ten days before the appeal is heard the respondent shall deliver a similar statement. Three additional copies shall in each case be filed with the registrar. (16) A notice of appeal in terms of section 76 of the Patents Act, 1978 (Act 57 of 1978), or section 63 of the Trade Marks Act, 1963 (Act 62 of 1963), may be served on the patent agent referred to in the Patents Act, 1978, or the agent referred to in section 8 of the Trade Marks Act, 1963, who represented the respondent in the proceedings in respect of which an appeal is noted. (17) In the case of appeals to the full court in terms of the provisions of a statute in which the procedure to be followed is laid down, this rule is applicable as far as provision is made for matters not regulated by the statute. (18) 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.

Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Empangeni.

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 Empangeni

Whether you claim child maintenance in Empangeni, 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 Empangeni.

The maintenance scenario – Empangeni 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 Empangeni
The child is cared for by the mother who works in Empangeni
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 Empangeni
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 Empangeni, it would be the maintenance court in Empangeni. 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 Empangeni, 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 Empangeni Maintenance Court?

Once you have been notified of the maintenance court date by the Empangeni 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 Empangeni?

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 Empangeni 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 Empangeni 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: