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Posted on 11 February 2025 by Telelaw

[caption id="attachment_8911" align="alignleft" width="440"] Parental responsibilities and care during the coronavirus lockdown in South Africa[/caption]
Updated: 16 April 2020
New regulations have been issued on 16 April 2020. Click on the link below: The material change is that you do not have to have a court order or a parental responsibilities and rights agreement or parenting plan, registered with the family advocate. Possession of a birth certificate or certified copy of a birth certificate is now also allowed.

Update: 07 April 2020

NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020)

What separated and divorced parents should think about prior to the coronavirus lockdown

With the world working towards eradicating the spreading of the coronavirus, South Africans are going to be placed on lockdown from 11:59 on Thursday 26 March 2020. This will endure for a period of 21 (twenty-one) days. This is what President Cyril Ramaphosa announced yesterday on national television. The applicable legislation allowing for this is the Disaster Management Act. This is done to contain the spread of the coronavirus in South Africa. What this means, in essence, unless you fall under the categories of persons allowed to work and be out there, you should remain at home.

The Application of Contact and care Court Orders during the lockdown

Schools have already been locked down and its keys stored away. The number of people who may be in the same place at the same time was restricted to an amount of 100. Now things have escalated to everyone staying at home unless you are allowed to be outside. This, however, leaves us with uncertain legal challenges when it comes to the exercising of contact and parental responsibilities and rights to minor children. It becomes even more challenging if there is a court order allowing a parent to have contact, but the child is currently with the other parent during the lockdown. • Does the court order supersede what the President told us to do? • Can we go against the lockdown injunction to exercise contact? At this moment, the questions are hard to answer. And in our view, should not be answered, unless clearer directives are provided by the government, dealing with this situation.

What are the usual contact and care arrangements?

The usual contact and care rights are any or a combination of the following: • The minor child will reside primarily with one parent for a period, and then with the other parent for the same period; • One parent has primary care with the child during the week, and the other parent has contact during alternative weekends; • The child resides with one parent, and the other parent collects the minor child in the morning and takes and collects the minor child from school. Thereafter returning the minor child to the primary caregiver; • Supervised contact, where a parent has contact at the minor child’s primary home, supervised by the other parent or another person; • Contact which is supervised in a public space, or by a social worker; and • Other specific cases. Contact would also entail telephonic and video contact.

How should contact be exercised during a lockdown?

There are 2 (two) more days before the lockdown. What happens to weekend contact? Some parents are exercising holiday contact at present. • What happens at the end of a specific parent’s holiday period? • Can a parent go and collect the child or children and have them now stay at a different parent? • And then return the children later, still during a lockdown? These and other questions are unprecedented, and direction is required from the government, not only lawyers. At the very least, parents should use the next two (2) days to decide where the children would primarily reside, and if indeed they can only live in one home for the 21 days, how contact can take place via other means. For example, WhatsApp video, FaceTime, Skype or Zoom.

Final words on parental contact during the lockdown

• Do not take the law into your own hands. • Until there is certainty on this issue, presume that the child would need to remain with one parent during this period. • Arrange for alternative forms of contact as suggested above. • Also, ensure that the child has enough clothes and necessities at the home he or she will reside during the lockdown. • Use the next two (2) days to prepare for the worst, so that your child would have the best.

Update: 07 April 2020

NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020)

Posted on 11 February 2025 by Telelaw

I cannot afford to pay child maintenance during the Lockdown. What can I do? The other parent of my child has not paid any maintenance since before the lockdown. What should I do?
We are now on day 19 of the National Lockdown. Many expected the lockdown to endure for only 21 days. However, it is now set for 35 days. Unless you are an essential worker, or a business providing essential services, you may not go out to work or earn a living. You may, however, work from home making use of email, telephone calls, and video calls. However, the vast majority of workers in South Africa do not work from a computer or have the ability to earn money from being online. This applies to restaurants, retail stores and suppliers, the building and maintenance industry, and so on. The list is extensive. For those who are lucky to be employed, some will only receive half their salary and some none. No work, no pay. This is a sad reality of the national lockdown. Many people will be left without jobs and unable to pay their expenses. We can only hope and pray that the COVID-19, coronavirus pandemic comes to an end as soon as possible. South Africans can then work together in building our nation back to where it was and beyond.

Regulations regarding the movement of children during the lockdown

Concerning the issue of a parent’s inability to pay child maintenance during the lockdown, let us first outline the current regulations regarding the movement of children during this period. This would place this article in perspective. Children may only be moved between homes under the following circumstances:

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

To view the regulations, click here.

TAKE NOTE! There is NO Child Maintenance Payment Holiday during the National Lockdown Period!

On 07 April 2020, an article was published entitled: TAKE NOTE! There is NO Child Maintenance Payment Holiday during the National Lockdown Period! This article still stands. We received many queries and comments from parents who cannot afford to pay child maintenance during the lockdown, and parents who have not received any child maintenance prior. Let us deal with this issue.

A parent’s duty to pay child maintenance

Whether or not there is a maintenance order in place, a parent has the duty to maintain his or her child. This duty does not stem from a court order, but by operation of law. A parent, therefore, cannot opt-out from paying child support. The only exception could be if the child, although he or she is a minor, is very wealthy, and does not require any form of child maintenance. This latter scenario is however rare.

What are the social welfare consequences of not paying child support?

The very basic purpose of paying child support is to feed, clothe and give the child shelter. If a child has two (2) parents, then both of them have a legal obligation to maintain that child. If one parent pays child support, the other parent would use that money to supplement the expenses of the child. Therefore, the money would be used to pay for any of the following basic needs during the lockdown period:

Food (breakfast, lunch and supper)
Accommodation (rent)
Electricity, water and gas
Basic clothing
Basic educational expenses
Personal hygiene and medical expenses

Now let’s say both parents are not earning any money during the lockdown period. The parent caring for the child is trying his or her utmost best to feed the child with what little money there is. If the parent who is supposed to pay child support does not pay his or her portion, what would happen? It would mean that the child would not have food to eat during the lockdown period. This is not in the child’s best interest. A parent should, therefore, try his or her utmost to avoid this situation from happening by paying child support.

What if a parent really cannot afford to pay child maintenance during the lockdown period?

It is theoretically possible that a parent, who receives no income during the lockdown period, cannot afford to pay all the child maintenance he or she is obliged to pay. This category of parent would be one who owns no assets of value to sell, is not eligible to take out a loan from someone, and himself or herself is destitute. In other words, there is no money or assets at all. Should the mother lay a complaint for non-compliance with the Maintenance order, or for paying child support, he or she should prove that he or she was truly destitute and could not pay any child support, albeit a small amount.

For what may a parent approach the maintenance court during the lockdown?

In terms of direction 8(b)(i) and (ii)issued in the Regulations (No. R418) issued on 28 March 2029 in the Government Gazette (No.43167), the Maintenance Court may deal with maintenance matters during the lockdown as follows: – First time applications for maintenance will only be dealt with if complete information is supplied in respect of required names, surname, telephone or cellular phone number, employment or business address, banking details of the Respondent; and – Application in respect of enforcement of maintenance orders Therefore, if a parent is not paying child support in terms of a court order, approach the maintenance court to enforce it, even during the lockdown. If you do not have a maintenance order, and not receiving maintenance, approach the maintenance court during the lockdown and ensure you have all the information mentioned in the regulations above. We, therefore, urge parents to pay their child support during the lockdown period. This is so even though you never saw your child during the entire lockdown period. Make a loan, sell some goods, or do whatever you can to ensure your child has food to eat during the lockdown and beyond. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws

Posted on 11 February 2025 by Telelaw

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