Trust Account Advocate in South Africa – How does Advocate Muhammad Abduroaf’s Practice?

A relatively recent concept in South Africa is Trust Account Advocates, which came into existence in 2018. The referral advocate profession remains the prevalent type of Advocate to this day. To understand what a Trust Account Advocate is, one needs to understand what a referral advocate is. The Legal Practice Act provides a distinction between Trust Account Advocates and Referral Advocates.

What is a referral advocate in South Africa?

Prior to 2018, all advocates were referred to as only “Advocates”. Advocates were instructed by an attorney. What this meant was that a client would approach an attorney, who would, in turn, instruct and advocate to do work. The work the Advocate would be instructed to do predominantly relates to matters connecting to Court or litigation. Therefore, should a client want to claim money from someone, the attorney would instruct the Advocate to assist in the litigation process. This would include drafting court documents and appearing in Court. The attorney would attend to the administrative matters regarding the case. For example, writing letters, copying documents, filing at Court, and ensuring that everything is in order. The Advocate would then invoice the attorney for work done.

How does a Trust Account Advocate operate in South Africa?

A Trust Account Advocate would be a hybrid between an attorney and a Referral Advocate. The Trust Account advocate would generally do work that referral advocates do; however, they also do work that an attorney would do. The client would, however, pay fees directly to the Trust Account Advocate into his or her Trust Account. This is not possible for Referral Advocates, where fees must be paid into the Attorneys Trust Account. It can only be paid to the Advocate after the work is done.

How does Advocate Muhammad Abduroaf operate as a Trust Account Advocate?

Advocate Muhammad Abduroaf’s practice is a general litigation practice. The client would approach his firm directly for an impending legal matter. After a consultation with Adv. Muhammad Abduroaf and it is resolved that the matter requires his attention, he would take on the matter. If fees are paid in advance, they will be paid into his Trust Account. The same as an attorney would do. The main difference between his practice and that of an attorney working with a Referral Advocate is that the client would deal directly with him as the Advocate in the matter. Not via the attorney.

How do I instruct Advocate Muhammad Abduroaf?

If you wish to instruct Advocate Muhammad Abduroaf in a legal matter, feel free to contact him. His website is www. abduroaf.co.za. You may also contact him using the number 021 1110090.    
Posted on by Telelaw

Trust Account Advocate in South Africa – How does Advocate Muhammad Abduroaf’s Practice?

A relatively recent concept in South Africa is Trust Account Advocates, which came into existence in 2018. The referral advocate profession remains the prevalent type of Advocate to this day. To understand what a Trust Account Advocate is, one needs to understand what a referral advocate is. The Legal Practice Act provides a distinction between Trust Account Advocates and Referral Advocates.

What is a referral advocate in South Africa?

Prior to 2018, all advocates were referred to as only “Advocates”. Advocates were instructed by an attorney. What this meant was that a client would approach an attorney, who would, in turn, instruct and advocate to do work. The work the Advocate would be instructed to do predominantly relates to matters connecting to Court or litigation. Therefore, should a client want to claim money from someone, the attorney would instruct the Advocate to assist in the litigation process. This would include drafting court documents and appearing in Court. The attorney would attend to the administrative matters regarding the case. For example, writing letters, copying documents, filing at Court, and ensuring that everything is in order. The Advocate would then invoice the attorney for work done.

How does a Trust Account Advocate operate in South Africa?

A Trust Account Advocate would be a hybrid between an attorney and a Referral Advocate. The Trust Account advocate would generally do work that referral advocates do; however, they also do work that an attorney would do. The client would, however, pay fees directly to the Trust Account Advocate into his or her Trust Account. This is not possible for Referral Advocates, where fees must be paid into the Attorneys Trust Account. It can only be paid to the Advocate after the work is done.

How does Advocate Muhammad Abduroaf operate as a Trust Account Advocate?

Advocate Muhammad Abduroaf’s practice is a general litigation practice. The client would approach his firm directly for an impending legal matter. After a consultation with Adv. Muhammad Abduroaf and it is resolved that the matter requires his attention, he would take on the matter. If fees are paid in advance, they will be paid into his Trust Account. The same as an attorney would do. The main difference between his practice and that of an attorney working with a Referral Advocate is that the client would deal directly with him as the Advocate in the matter. Not via the attorney.

How do I instruct Advocate Muhammad Abduroaf?

If you wish to instruct Advocate Muhammad Abduroaf in a legal matter, feel free to contact him. His website is www. abduroaf.co.za. You may also contact him using the number 021 1110090.

 

 

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[caption id="attachment_10839" align="alignnone" width="667"]Relocation consent Court Order for minor child to Switzerland - Advocate Muhammad Abduroaf Relocation consent Court Order for minor child to Switzerland – Advocate Muhammad Abduroaf[/caption]

I want to relocate from South Africa to Switzerland with my minor child. The other parent does not want my child to relocate to Switzerland. What can I do?

Switzerland is a popular destination to emigrate to. People emigrate from South Africa for many reasons. It ranges from better employment opportunities, family relations, or for a better standard of living. Whatever the reason a parent wants to relocate to Switzerland, if a minor child will be joining that parent and also relocating to Switzerland, then the parent remaining in South Africa’s consent would usually be required. Let us unpack the legal issues a parent may encounter when wanting to emigrate to Switzerland. Before we do so, let us list the various cities and towns in Switzerland to which you may want to relocate: Zürich, Geneva, Basel, Lausanne, Bern, Winterthur, Lucerne, Sankt Gallen, Lugano, Biel/Bienne, Thun, Bellinzona, Köniz, La Chaux-de-Fonds, Fribourg, Schaffhausen, Vernier, Chur, Sion, Uster, Neuchâtel, Landecy, Zug, Yverdon-les-Bains, Emmen, Dübendorf, Kriens, Rapperswil-Jona, Dietikon, Montreux, Wetzikon, Baar, Meyrin, Wil, Bulle, Horgen, Carouge, Frauenfeld, Kreuzlingen, Wädenswil, Riehen, Aarau, Allschwil, Renens, Wettingen, Nyon, Bülach, Vevey, Opfikon, Kloten, Reinach, Baden, Onex, Adliswil, Schlieren, Volketswil, Pully, Regensdorf, Gossau, Muttenz, Thalwil, Monthey, Ostermundigen, Littau, Grenchen, Olten, Sierre, Solothurn, Pratteln, Burgdorf, Freienbach, Wohlen, Locarno, Wallisellen, Morges, Steffisburg, Herisau, Langenthal, Binningen, Einsiedeln, Lyss, Mendrisio, Arbon, Liestal, Stäfa, Küsnacht, Horw, Schwyz, Thônex, Meilen, Oftringen, Amriswil, Versoix, Richterswil, Rheinfelden, Brig-Glis, Gland, Küssnacht, Muri, Zollikon, Ecublens, Spiez, Delémont, Buchs, Prilly, Chêne-Bougeries, Le Grand-Saconnex, Rüti, Münchenstein, Villars-sur-Glâne, Affoltern am Albis, Arth, La Tour-de-Peilz, Pfäffikon, Spreitenbach, Altstätten, Zofingen, Veyrier, Bassersdorf, Weinfelden, Belp, Worb, Hinwil, Romanshorn, Oberwil, Brugg, Möhlin, Männedorf, Davos, Plan-les-Ouates, Waltikon, Lenzburg, Flawil, Neuhausen am Rheinfall, Le Locle, Suhr, Sarnen, Aesch, Birsfelden, Lutry, Bernex, Maur, Aigle, Naters, Steinhaus, Therwil, Payerne, Gossau, Sursee, Hochdorf, Urdorf, Wald, Estavayer-le-Lac, Wittenbach, Widnau, Epalinges, Rorschach, Embrach, Altdorf, Langnau, Goldach, Schübelbach, Arlesheim, Niederhasli, Rothrist, Aadorf, Ingenbohl, Oberriet, Zuchwil, Unterägeri, Landquart, Neuenhof, Hünenberg, Fully, Lachen, Wattwil, Bussy, Conthey, Mels, Egg, Hombrechtikon, Fällanden, Biberist, Obersiggenthal, Le Mont-sur-Lausanne, Reinach, Kilchberg, Stans, Oberentfelden, Murten, Bagnes, Aarburg, Domat/Ems, Chiasso, Buchs, Düdingen, Crissier, Rümlang, Visp, Muri, Au, Willisau, Bex, Sirnach, Bremgarten, Gränichen, Chavannes-près-Renens, Savièse, Dietlikon, Windisch, Rothenburg, Dürnten, Langnau am Albis, Ollon, Hirslen, Moutier, Villmergen, Minusio, Seuzach, Rorschacherberg, Wollerau, Untersiggenthal, Meggen, Herzogenbuchsee, Bubikon, Reiden, Altendorf, Grabs, Orbe, Châtel-Saint-Denis, Oberglatt, Frutigen, Ruswil, Schwarzenburg, Heimberg, Saanen, Nidau, Dornach, Losone, Bottmingen, Sissach, Porrentruy, Beromünster, Thal, Oberengstringen, Trimbach, Wiesendangen, Derendingen, Würenlos, Diepoldsau, Frenkendorf, Uznach, Oberuzwil, Birmensdorf, Fehraltorf, Vétroz, Kerns, Menziken, Buchs, Herrliberg, Oensingen, Teufen, Bolligen, Rolle, Massagno, Gelterkinden, Küttigen, Blonay, Boudry, Uetikon am See, Moudon, Balsthal, Buchrain, Biasca, Obererli, Alpnach, Bischofszell, Glarus, Kirchberg, Dielsdorf, Zell, Saxon, Uetendorf, Sankt Margrethen, Rüschlikon, Peseux, Hergiswil, Villeneuve, Unterseen, Jegenstorf, Echallens, Neftenbach, Saint-Prex, Walenstadt, Appenzell, Zermatt, Mellingen, Lindau, Interlaken, Sennwald, Nürensdorf, Kaiseraugst, Cologny, Erlenbach, Frick, Laufen, Colombier, Fislisbach, Bonstetten, Ascona, Dagmersellen, Rupperswil, Thayngen, Courtepin, Schattdorf, Gebenstorf, Adligenswil, Münchwilen, Greifensee, Obfelden, Buochs, Vechigen, Seon, Préverenges, Konolfingen Dorf, Romont, Feusisberg, Lengnau, Bellach, Lausen, Gerlafingen, Hitzkirch, Glattfelden, Saint Légier-La Chiésaz, Eglisau, Gommiswald, Ettingen, Sachseln, Hägendorf, Zumikon, Fraubrunnen, Sevelen, Schwerzenbach, Oberrieden, Wangen bei Olten, Wangen, Dulliken, Sumiswald, Root, Ebnat-Kappel, Bäretswil, Chavornay, Saint Moritz, Bauma, Geroldswil, Niederglatt, Schönenwerd, Bettlach, Elgg, Strengelbach, Mettmenstetten, Sainte-Croix, Flums, Kaltbrunn, Huttwil, Sigriswil, Ehrendingen, Ennetbürgen, Balgach, Zuzwil, Niederlenz, Berikon, Weiningen, Oetwil am See, Turbenthal, Cortaillod, Wängi, Niederbipp, Egnach, Oberkirch, Würenlingen, Gordola, Troistorrents, Saint-Sulpice, Triengen, Le Landeron, Beringen, Tägerwilen, Aarberg, Confignon, Meiringen, Stabio, Scuol, Le Chenit, Stansstad, Morbio Inferiore, Saint-Maurice, Tramelan, Menzingen, Monte Ceneri, Bronschhofen, Aarwangen, Winkel, Füllinsdorf, Zufikon, Kölliken, Rafz, Oberbüren, Agno, Klosters Platz, Schötz, Schöftland, Bubendorf, Brügg, Rebstein, Speicher, Eschlikon, Weggis, Gachnang, Caslano, Russikon, Birr, Cheseaux-sur-Lausanne, Wolhusen, Utzenstorf, Kehrsatz, Wichtrach, Avenches, Sins, Bad Zurzach, Uitikon, Schüpfheim, Lucens, Lens, Vouvry, Satigny, Engelberg, Sempach, Gross Höchstetten, Heiden, Unterentfelden, Lützelflüh, Paradiso, Degersheim, Niederrohrdorf, Matten, Dällikon, Roggwil, Oberrohrdorf, Ayent, Döttingen, Hilterfingen, Prangins, Leysin, Hunzenschwil, Diessenhofen, Seengen, Bürglen, Berneck, Brittnau, Böttstein, Lostorf, Leuk, Magden, Chamoson, Dottikon, Muhen, Sulgen, Niedergösgen, Nottwil, Breitenbach, Pfungen, Safenwil, Bürglen, Vallorbe, Schänis, Unterengstringen, Grindelwald, Bevaix, Langendorf, Founex, Jonschwil, Steckborn, Reichenburg, Erlen, La Neuveville, Hedingen, Schüpfen, Belmont-sur-Lausanne, Mönchaltorf, Schmerikon, Widen, Port, Stallikon, Egerkingen, Beckenried, Walchwil, Elsau, Giswil, Rüti, Hausen am Albis, Feuerthalen, Hausen, Tavannes, Laufenburg, Reichenbach im Kandertal, Hittnau, Stein, Plaffeien, Eschenbach, Mörschwil, Büren an der Aare, Ins, Erlinsbach, Merenschwand, Chalais, Attalens, Poschiavo, Waldkirch, Ennetbaden, Klingnau, Luterbach, Gams, Steinmaur, Château-d’Oex, Ermatingen, Selzach, Münsterlingen, Grimisuat, Zizers, Yvonand, Rheineck, Steinen, Berg, Bösingen, Vacallo, Thunstetten, Corsier-sur-Vevey, Stein am Rhein, Adelboden, Rickenbach, Grüningen, Grandson, Savigny, Staufen, Bonaduz, Entlebuch, Courroux, Romanel-sur-Lausanne, Tuggen, Trimmis, Weisslingen, Bellevue, Buttisholz, Penthalaz, Belfaux, Madiswil, Beinwil am See, Balerna, Rüegsbach, Bätterkinden, Aubonne, Grosswangen, Kappel, Thusis, Ardon, Saint-Blaise, Leytron, Subingen, Stein, Ursy, Arosa, Orsières, Kirchlindach, Hofstetten, Le Mouret, Coppet, Niederhelfenschwil, Hettlingen, Neerach, Laupen, Oberdorf, Seedorf, Stettlen, Lupfig, Brienz, Torricella, Unterkulm, Gais, Roggwil, Echichens, Benken, Niederweningen, Zweisimmen, Grossaffoltern, Turgi, Schafisheim, Courrendlin, Birmenstorf, Müllheim, Mühleberg, Murgenthal, Meisterschwanden, Chardonne, Geuensee, Coldrerio, Schenkon, Quarten, Wattenwil, Oberburg, Waltenschwil, Cadenazzo, Samedan, Matzingen, Faido, Sarmenstorf, Etoy, Märstetten, Othmarsingen, Mosnang, Menznau, Puidoux, Commugny, Täuffelen, Däniken, Rorbas, Boswil, Flims, Otelfingen, Niederwil, Bergdietikon, Ennenda, Orpund, Fischingen, Ballwil, Gretzenbach, Genthod, Riaz, Rickenbach bei Wil, Rain, Horn, Ettiswil, Lengnau, Cugy, Lauterbrunnen, Vionnaz, Höri, Oberkulm, Corminboeuf, Muralto, Montanaire, Schiers, Pfaffnau, Evilard, Kaisten, Signau, Rickenbach, Wilderswil, Mont-sur-Rolle, Broc, Riva San Vitale, Lenzerheide, Nebikon, Bioggio, Hauterive, Felsberg, Saillon, Rapperswil, Lauperswil, Courtételle, Saignelégier, La Sarraz, Lonay, Maggia, Buchegg, Froideville, Saint-Cergue, Endingen, Neyruz, Lotzwil, Ringgenberg, Zunzgen, Inwil, Ottenbach, Riggisberg, Affeltrangen, Kemmen, Büron, Wimmis, Bönigen, Hölstein, Sant’ Antonino, Roveredo, Wilen, Untervaz, Toffen, Fischenthal, Troinex, Vandœuvres, Corcelles-près-Payerne, Hohenrain, Puplinge, Oetwil an der Limmat, Meikirch, Wigoltingen, Saint-Léonard, Eggiwil, Oberdorf, Thierachern, Hägglingen, Grône, Rothenthurm, Vuadens, Anières, Zwingen, Saint-Aubin-Sauges, Rüthi, Unteriberg, Rüderswil, Novazzano, Malans, Wiedlisbach, Freienstein, Ueberstorf, Lufingen, Krauchthal, Pfeffingen, Hildisrieden, Gersau, Courgenay, Vuisternens-devant-Romont, Reconvilier, Urnäsch, Martigny-Combe, Wangen an der Aare, Riedholz, Zeiningen, Knonau, Bardonnex, Büsserach, Oberbuchsiten, Eiken, Neunkirch, Worben, Corseaux, Udligenswil, Wolfwil, Stadel bei Niederglatt, Henggart, Neuheim, Schinznach Dorf, Canobbio, Diemtigen, Wauwil, Sankt Niklaus, Chexbres, Gimel, Siviriez, Neuendorf, Knutwil, Dintikon, Bottighofen, Cazis, Hallau, Ormalingen, Savosa, Altnau, Deitingen, Obergösgen, Stetten, Andelfingen, Gruyères, Ennetmoos, Gontenschwil, Leuggern, Pontresina, Castel San Pietro, Aegerten, Itingen, Auw, Seftigen, Fahrwangen, Meinier, Villigen, Werthenstein, Lungern, Mägenwil, Corsier, Jonen, Marbach, Wolfenschiessen, Koppigen, Mies, Forel, Kleinandelfingen, Sankt Antoni, Grüsch, Killwangen, Ersigen, Wynigen, Oberlunkhofen, Zell, Comano, Alterswil, Gorgier, Vollèges, Brütten, Pfyn, Andwil, Recherswil, Remetschwil, Silenen, Aeugst am Albis, Flüeln, Walzenhausen, Wila, Barbengo, Val-d’Illiez, Flühli, Vordemwald, Begnins, Marthalen, Churwalden, Servion, Raron, Sattel, Genolier, Tolochenaz, Dachsen, Hochfelden, Avry-sur-Matran, Grolley, Winznau, Kallnach, Oberegg, Vezia, Marsens, Ponte Capriasca, Malleray, Cressier, Vernayaz, Nunningen, Lichtensteig, Dänikon, Waldstatt, Dardagny, Röschenz, Seedorf, Uttwil, Laax, Charrat, Alle, Le Noirmont, Grellingen, Dallenwil, Kirchdorf, Schönenberg, Arni, Wolfhalden, Veyras, Pont-en-Ogoz, Laupersdorf, Biglen, Vex, Acquarossa, Kestenholz, Melide, Saint-Aubin, Bühler, Oberweningen, Niederdorf, Rüeggisberg, Massongex, Amden, Fulenbach, Sorengo, Brissago, Römerswil, Oberbipp, Walkringen, Avully, Cugy, Weiach, Penthaz, Künten, Rehetobel, Erlenbach im Simmental, Eschenz, Hasle, Lamone, Wilchingen, Trogen, Lengwil, Hüttwilen, Attinghausen, Weesen, Oberdorf, Starrkirch, La Roche, Schwarzenberg, Corgémont, Wagenhausen, Bellmund, Chancy, Fontenais, Evolène, Schleitheim, Teufenthal, Niederönz, Langwiesen, Rüschegg, Koblenz, Diegten, Gunzgen, Brislach, Roche, Härkingen, Arisdorf, Giffers, Villnachern, Cudrefin, Wynau, Eich, Magliaso, Chippis, Sisseln, Denges, Eysins, Saas-Fee, Zäziwil, Arch, Güttingen, Hirschthal, Bière, Ziefen, Berg, Reigoldswil, Luzein, Auenstein, Heimiswil, Porza, Altishofen, Lütisburg, Tannay, Schwellbrunn, Biberstein, Ossingen, Wohlenschwil, Pfäfers, Cornaux, Bellikon, Seeberg, Auvernier, Bedano, Dinhard, Salgesch, Herznach, Homburg, Duggingen, Perroy, Lommiswil, Jongny, Oberrüti, Cadempino, Wikon, Airolo, Zernez, Les Breuleux, Rue, Buchholterberg, Eichberg, Matran, Melchnau, Niederbüren, Lumino, Tägerig, Cottens, Guggisberg, Bossonnens, Paudex, Attiswil, Aristau, Rhäzüns, Rohrbach, Messen, L’Abbaye, Les Montets, Löhningen, Treyvaux, Ramsen, Apples, Mumpf, Veltheim, Wahlen, Schneisingen, Rüttenen, Tübach, Meierskappel, Mauensee, Origlio. (https://simplemaps.com/data/ch-cities)  

Why do I require the other parent’s Consent to relocate to Switzerland?

According to South African law, if you are a co-holder of parental responsibilities and rights over your minor child, you must consent to your child leaving South Africa. In this case, relocating to Switzerland. Here we refer to section 18 of the Children’s Act 38 of 2005. The entire provision is as follows: 18 Parental responsibilities and rights  (1) A person may have either full or specific parental responsibilities and rights in respect of a child.  (2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right-  (a) to care for the child;  (b) to maintain contact with the child;  (c) to act as guardian of the child; and  (d) to contribute to the maintenance of the child.  (3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must-  (a) administer and safeguard the child’s property and property interests;  (b) assist or represent the child in administrative, contractual and other legal matters; or  (c) give or refuse any consent required by law in respect of the child, including-  (i) consent to the child’s marriage;  (ii) consent to the child’s adoption;  (iii) consent to the child’s departure or removal from the Republic;  (iv) consent to the child’s application for a passport; and  (v) consent to the alienation or encumbrance of any immovable property of the child.  (4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the Consent of the other any right or responsibility arising from such guardianship. (5) Unless a competent court orders otherwise, the Consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c). Now let us explain what Parental Responsibilities and Rights are.

What are Parental Responsibilities and Rights of a parent in relation to a child?

As can be seen from section 18(2) of the Children’s Act, when we refer to Parental Responsibilities and Rights, we refer to the following: (a) to care for the child;  (b) to maintain contact with the child;  (c) to act as guardian of the child; and  (d) to contribute to the maintenance of the child. Therefore, if a parent has parental responsibilities and rights over a minor child, and accordingly, rights of guardianship, their Consent is required when it comes to issues of guardianship. As seen from section 18(3)(c) of the Children’s Act above, both parents’ Consent is required should a minor child depart from the Republic of South Africa. In this case, to emigrate to Switzerland. Even if the minor child only wants to go for a short holiday to Switzerland, both guardians’ Consent would be required.

When would the other parent be seen as a guardian in the case of a relocation matter to Switzerland?

It must be noted that not all parents are legal guardians over their minor children. We should therefore distinguish between married or divorced parents and parents who were never married. As you would see below, usually married, or divorced parents’ Consent would be required for a minor child to relocate or emigrate to Switzerland. However, that does not automatically apply to parents who were never married. This could be because the child could have been born from a brief encounter and never met his or her father. It would not make sense that a parent who never met his or her 15-year-old child, should give Consent for relocation to Switzerland.

Mother’s Consent for relocation of the minor child to Switzerland

Section 19 of the Children’s Act deals with the Parental responsibilities and rights of mothers. It states the following: 19 Parental responsibilities and rights of mothers  (1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.  (2) If-  (a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and  (b) the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child.  (3) This section does not apply in respect of a child who is the subject of a surrogacy agreement. As seen from section 19(1) of the Children’s Act, in most cases involving the relocation of a minor child to Switzerland, the mother’s Consent is required as she has full parental responsibilities and rights over the minor child.

Married father’s Consent for the relocation of the minor child to Switzerland

Section 20 of the Children’s Act deals with Parental responsibilities and rights of married fathers. It states the following: 20 Parental responsibilities and rights of married fathers The biological father of a child has full parental responsibilities and rights in respect of the child- (a) if he is married to the child’s mother; or (b) if he was married to the child’s mother at (i) the time of the child’s conception; (ii) the time of the child’s birth; or (iii) any time between the child’s conception and birth. As can be seen from sections 20 (a) and (b) of the Children’s Act, if the father and the mother were married, or are married, then his Consent is required for the minor child to relocate to Switzerland. Of course, an exception to this would be should a court of law order otherwise. This would be the case should the parents be divorced and the divorce court ordered that only the mother may act as guardian. Next, we deal with the issue of an unmarried father’s Consent to relocate a minor child to Switzerland.

Consent of unmarried fathers for the relocation of their minor children to Switzerland.

Section 21 of the Children’s Act deals with parental responsibilities and rights of unmarried fathers. The section states the following: 21 Parental responsibilities and rights of unmarried fathers  (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child-  (a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or  (b) if he, regardless of whether he has lived or is living with the mother-  (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;  (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and  (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.  (2) This section does not affect the duty of a father to contribute towards the maintenance of the child.  (3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.  (b) Any party to the mediation may have the outcome  of the mediation reviewed by a court.  (4) This section applies regardless of whether the child was born before or after the commencement of this Act. As can be seen from the latter sections, a father of a child born out of wedlock does not automatically have parental responsibilities and rights over his minor child. He may however acquire those parental responsibilities and rights over his minor child if he is materially involved in the child’s life. That would be where the father and the mother were in a permanent life partnership when the child was born or he is meaningfully involved in the child’s life, as outlined above. We shall not go into much detail regarding that. However, in most cases, if the father had regular contact with the child and paid child support, he would have acquired parental responsibilities and rights over the minor child.

What do you do if the other parent does not want to consent to the minor child relocating to Switzerland?

Suppose the other parent also has parental responsibilities and rights over the minor child, and he or she does not want to consent to the relocation of the minor child to Switzerland, then in such a case, the Court needs to be approached. Here I refer you back to section 18(5) of the Children’s Act referred to above where it states: (5) Unless a competent court orders otherwise, the Consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c). Therefore, after your Court Application has been launched an both sides have been heard, the Court would make the necessary Order. If you are successful in your application for the relocation of your minor children to Switzerland, then the Court will make an Order similar to that which is shown below. Relocation consent Court Order for minor child to Switzerland - Advocate Muhammad Abduroaf [caption id="attachment_10839" align="alignnone" width="676"]Relocation consent Court Order for minor child to Switzerland - Advocate Muhammad Abduroaf Relocation consent Court Order for minor child to Switzerland – Advocate Muhammad Abduroaf[/caption]  

Posted on by Telelaw

Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Randfontein Children’s Court

 

Family law legal matters can be very stressful. This is so whether you live in Randfontein or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client.

This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in Randfontein. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in Randfontein or any other city in South Africa.

What to do before visiting the Randfontein Children’s Court

Before you approach the Children’s Court in Randfontein, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. Randfontein has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the Randfontein Children’s Court for assistance.

TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.

Approaching the Randfontein Children’s Court

The Randfontein Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Randfontein Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you.

Once you arrive at the Randfontein Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2.

In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:

  • PART A: PARTICULARS OF CHILD(REN)
  • PART B: PARTICULARS OF *CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON *ACTING IN THE INTEREST OF THE CHILD/*ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ *MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
  • PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
  • PART D: PARTICULARS OF MATTER

In part D, the following is stated which you need to provide in the form:

  • Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
  • Documents: Are there any documents relating to the matter? (If so please attach)

Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Randfontein.

TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.

Processing your Application at the Randfontein Children’s Court

Once you complete the Form A and submit it to the Clerk of the Randfontein Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow.

TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.

Appearing in the Randfontein Children’s Court

When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:

  • Get a social worker involved in the matter;
  • Appoint a legal representative for the minor child;
  • Implement interim care and contact arrangements;
  • Having the parties attempt to agree on a parenting plan;
  •  

In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests.

TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.

Finalising the matter in the Randfontein Children’s Court

Once the Randfontein Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later.

TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.

The above Randfontein Children’s Court Application tips should apply to the following provinces and cities:

Eastern Cape:

Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha

Port Elizabeth, Queenstown, Uitenhage, Zwelitsha

Free State:

Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom

Gauteng:

Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging

KwaZulu-Natal:

Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi

Limpopo:

Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi

Mpumalanga:

Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth

Western Cape:

Bellville, Randfontein, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Posted on by Telelaw

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