Advocate of the High Court of South Africa – The Advocate’s Profession in South Africa

 

Let us ask advocate Muhammad Abduroaf a few questions

[caption id="attachment_8831" align="alignleft" width="243"]Advocate High Court - Gauteng Johannesburg Eastern Cape High Court (Bhisho)
Free State High Court (Bloemfontein)
Western Cape High Court (Cape Town)
KwaZulu-Natal High Court (Durban)
Eastern Cape High Court (Grahamstown)
South Gauteng High Court (Johannesburg)
Northern Cape High Court (Kimberley)
KwaZulu-Natal High Court (Pietermaritzburg)
Eastern Cape High Court (Port Elizabeth)
North Gauteng High Court (Pretoria)
Limpopo High Court (Thohoyandou)
Eastern Cape High Court (Mthatha)
North West High Court, Mafikeng (Mmabatho) and
Polokwane Circuit Court of the North Gauteng High Court, Pretoria[/caption] South African law has recently changed when it comes to advocates. Now it is possible for advocates to obtain trust accounts which were impossible in the past. By doing so, they would be allowed to take instructions directly from the public. In other words, the client does not first need to see an attorney. Here the Legal Practice Act No. 28 of 2014 comes into play. More than a year has elapsed since the Act has been operating in full swing.   Further below, we tapped into the experience of Advocate Muhammad Abduroaf, a practising advocate of the High Court of South Africa. He gives us some insight into the advocate profession. Although his office is located in Cape Town, he appeared and represented clients in other towns and provinces as well.  

What is the difference between an advocate and an attorney?

Both advocates and attorneys are lawyers or legal practitioners. In simple terms, the attorney is seen as a general practitioner, and an advocate is a specialist. This is however not always the case. Many attorneys now appear in the High Court, and as stated, advocates may obtain trust accounts. The development where an attorney can now appear in the High Court came into existence some years ago. Usually, on TV, you would see the advocate wearing the black robe and the attorney in the smart suit next to him or her.  

What type of work do advocates do?

  Generally, advocates practice in the Higher Courts of South Africa. Here we refer to the High Courts, Supreme Court of Appeal, and the main one, the Constitutional Court. The Attorney would be the one who would do the groundwork, and if need be, instruct the advocate to attend to the more complicated aspects of the case. For example, the advocate would be drafting pleadings, or affidavits, and attending to arguing the matter before a judge and so on. Not to say the other aspects of litigation are not difficult; the latter items are however best suited for advocates to attend to.  

Do advocates give legal opinions on legal matters?

  Advocates would furthermore also be asked to give their legal opinion on a legal matter. An attorney would usually meet with his or her client and discuss the problem at hand, and thereafter instruct an advocate to give his view on the matter. For example, if a client wants to know the prospects of success in a given legal case. The advocate would then spend time researching the law and finding answers to the legal issue at hand. Here again, this type of work would be best suited for an advocate. [caption id="attachment_8825" align="alignleft" width="159"]Advocate High Court - Gauteng Johannesburg Eastern Cape High Court (Bhisho)
Free State High Court (Bloemfontein)
Western Cape High Court (Cape Town)
KwaZulu-Natal High Court (Durban)
Eastern Cape High Court (Grahamstown)
South Gauteng High Court (Johannesburg)
Northern Cape High Court (Kimberley)
KwaZulu-Natal High Court (Pietermaritzburg)
Eastern Cape High Court (Port Elizabeth)
North Gauteng High Court (Pretoria)
Limpopo High Court (Thohoyandou)
Eastern Cape High Court (Mthatha)
North West High Court, Mafikeng (Mmabatho) and
Polokwane Circuit Court of the North Gauteng High Court, Pretoria[/caption]

Where are the High Courts in South Africa?

  In South Africa, we have 14 (fourteen) divisions of the High Court. They are as follows  

Eastern Cape High Court (Bhisho)

Free State High Court (Bloemfontein)

Western Cape High Court (Cape Town)

KwaZulu-Natal High Court (Durban)

Eastern Cape High Court (Grahamstown)

South Gauteng High Court (Johannesburg)

Northern Cape High Court (Kimberley)

KwaZulu-Natal High Court (Pietermaritzburg)

Eastern Cape High Court (Port Elizabeth)

North Gauteng High Court (Pretoria)

Limpopo High Court (Thohoyandou)

Eastern Cape High Court (Mthatha)

North West High Court, Mafikeng (Mmabatho) and

Polokwane Circuit Court of the North Gauteng High Court, Pretoria

There is also circuit court.

 

Do advocates appear in the Magistrate’s Court?

Furthermore, advocates also appear in the lower courts. For example, the Magistrates’ Court, Maintenance Court, Children’s Court and so on. Many times, complicated issues arise in matters that are adjudicated in the Magistrate’s Court. For example, big corporates fighting over an issue that is best suited for the Magistrate’s Court. In those cases, it would be prudent to instruct and advocate with the necessary experience and skills. [caption id="attachment_8830" align="alignleft" width="130"]Advocate High Court - Gauteng Johannesburg Eastern Cape High Court (Bhisho)
Free State High Court (Bloemfontein)
Western Cape High Court (Cape Town)
KwaZulu-Natal High Court (Durban)
Eastern Cape High Court (Grahamstown)
South Gauteng High Court (Johannesburg)
Northern Cape High Court (Kimberley)
KwaZulu-Natal High Court (Pietermaritzburg)
Eastern Cape High Court (Port Elizabeth)
North Gauteng High Court (Pretoria)
Limpopo High Court (Thohoyandou)
Eastern Cape High Court (Mthatha)
North West High Court, Mafikeng (Mmabatho) and
Polokwane Circuit Court of the North Gauteng High Court, Pretoria[/caption]

Do advocates do criminal work?

If there is a criminal matter pending in the High Court, usually an advocate would be briefed to attend to it. However, as stated, some attorneys have rights of appearance in the High Court. Advocates would usually attend to criminal matters in the Magistrates’ Court as well. This would either be District Court matters, or Regional Court matters. As you would have guessed, the High Court would deal with more serious offences.  

We would like to hear from Advocate Muhammad Abduroaf

  We asked advocate Muhammad Abduroaf, a practising advocate of the High Court of South Africa some questions regarding the advocate’s profession. He has over a decade and a half of litigation experience.  

Legal Experience:

Our Lawyer: When were you admitted as an advocate of the High Court of South Africa? Advocate Abduroaf: I was admitted as an advocate of the High Court of South Africa in 2003. It feels like yesterday when the Judge President and Deputy Judge President of the Western Cape High Court admitted me. That time, it was still called the Cape of Good Hope Provincial Division of the High Court. [caption id="attachment_8828" align="alignleft" width="140"]Advocate High Court - Gauteng Johannesburg Eastern Cape High Court (Bhisho)
Free State High Court (Bloemfontein)
Western Cape High Court (Cape Town)
KwaZulu-Natal High Court (Durban)
Eastern Cape High Court (Grahamstown)
South Gauteng High Court (Johannesburg)
Northern Cape High Court (Kimberley)
KwaZulu-Natal High Court (Pietermaritzburg)
Eastern Cape High Court (Port Elizabeth)
North Gauteng High Court (Pretoria)
Limpopo High Court (Thohoyandou)
Eastern Cape High Court (Mthatha)
North West High Court, Mafikeng (Mmabatho) and
Polokwane Circuit Court of the North Gauteng High Court, Pretoria[/caption]

Our Lawyer: What are your academic qualifications

Advocate Abduroaf: I hold an LL.B and an LL.M (Master of Laws), both from the University of the Western Cape. However, to become an advocate, you only require an LL.B.  

Our Lawyer: What do you believe are the qualities required to become an advocate?

Advocate Abduroaf: I think hard work and dedication is the key recipe to be a good advocate. One thing for sure, you cannot be lazy. You will not make it out there if you are.  

Our Lawyer: Is it hard practising as an advocate?

Advocate Abduroaf? Initially, it was very challenging. As you gain more experience, it becomes easier. It’s like anything in life, the more you focus on perfecting it, the easier it gets. There are still times when I am faced with a challenging case. I then dig deep and do my best.   Our Lawyer: How do you cope with being an advocate? Advocate Abduroaf. Firstly, I try to live a balanced life. Focusing on various aspects of life, and not only work. As an advocate, your most valued tool is your mind. If your mind is not sharp, you would be disadvantaged. I, therefore, try to keep fit and live a healthy balanced lifestyle.  

Our Lawyer: Are there cases you do not like to do?

Advocate Abduroaf: I love the law and enjoy practising it. However, there are times when you are faced with challenges. For example, the case that comes to you is in a mess, or your client has a week case, but still wishes to proceed. In such a case, things become challenging as you will most of the time be on the back-foot. [caption id="attachment_8827" align="alignleft" width="121"]Advocate High Court - Gauteng Johannesburg Advocate High Court – Gauteng JohannesburgEastern Cape High Court (Bhisho)
Free State High Court (Bloemfontein)
Western Cape High Court (Cape Town)
KwaZulu-Natal High Court (Durban)
Eastern Cape High Court (Grahamstown)
South Gauteng High Court (Johannesburg)
Northern Cape High Court (Kimberley)
KwaZulu-Natal High Court (Pietermaritzburg)
Eastern Cape High Court (Port Elizabeth)
North Gauteng High Court (Pretoria)
Limpopo High Court (Thohoyandou)
Eastern Cape High Court (Mthatha)
North West High Court, Mafikeng (Mmabatho) and
Polokwane Circuit Court of the North Gauteng High Court, Pretoria
clients in other cities or provinces?[/caption] Advocate Abduroaf: If the need arises and the client is willing to pay for the additional costs, then I would be happy to attend to matters in courts outside of Cape Town. Depending on where the court is situated, I would either fly down the morning or fly the night before.  

Our Lawyer: Any last words for aspiring advocates out there?

Advocate Abduroaf: Work hard, focus, and keep your head down and don’t look around. The next thing you know, you will be the best out there. Eastern Cape High Court (Bhisho) Free State High Court (Bloemfontein) Western Cape High Court (Cape Town) KwaZulu-Natal High Court (Durban) Eastern Cape High Court (Grahamstown) South Gauteng High Court (Johannesburg) Northern Cape High Court (Kimberley) KwaZulu-Natal High Court (Pietermaritzburg) Eastern Cape High Court (Port Elizabeth) North Gauteng High Court (Pretoria) Limpopo High Court (Thohoyandou) Eastern Cape High Court (Mthatha) North West High Court, Mafikeng (Mmabatho) and Polokwane Circuit Court of the North Gauteng High Court, Pretoria  

Advocate of the High Court of South Africa – The Advocate’s Profession in South Africa

 

Let us ask advocate Muhammad Abduroaf a few questions

Advocate High Court - Gauteng Johannesburg
Eastern Cape High Court (Bhisho)
Free State High Court (Bloemfontein)
Western Cape High Court (Cape Town)
KwaZulu-Natal High Court (Durban)
Eastern Cape High Court (Grahamstown)
South Gauteng High Court (Johannesburg)
Northern Cape High Court (Kimberley)
KwaZulu-Natal High Court (Pietermaritzburg)
Eastern Cape High Court (Port Elizabeth)
North Gauteng High Court (Pretoria)
Limpopo High Court (Thohoyandou)
Eastern Cape High Court (Mthatha)
North West High Court, Mafikeng (Mmabatho) and
Polokwane Circuit Court of the North Gauteng High Court, Pretoria

South African law has recently changed when it comes to advocates. Now it is possible for advocates to obtain trust accounts which were impossible in the past. By doing so, they would be allowed to take instructions directly from the public. In other words, the client does not first need to see an attorney. Here the Legal Practice Act No. 28 of 2014 comes into play. More than a year has elapsed since the Act has been operating in full swing.

 

Further below, we tapped into the experience of Advocate Muhammad Abduroaf, a practising advocate of the High Court of South Africa. He gives us some insight into the advocate profession. Although his office is located in Cape Town, he appeared and represented clients in other towns and provinces as well.

 

What is the difference between an advocate and an attorney?

Both advocates and attorneys are lawyers or legal practitioners. In simple terms, the attorney is seen as a general practitioner, and an advocate is a specialist. This is however not always the case. Many attorneys now appear in the High Court, and as stated, advocates may obtain trust accounts. The development where an attorney can now appear in the High Court came into existence some years ago. Usually, on TV, you would see the advocate wearing the black robe and the attorney in the smart suit next to him or her.

 

What type of work do advocates do?

 

Generally, advocates practice in the Higher Courts of South Africa. Here we refer to the High Courts, Supreme Court of Appeal, and the main one, the Constitutional Court. The Attorney would be the one who would do the groundwork, and if need be, instruct the advocate to attend to the more complicated aspects of the case. For example, the advocate would be drafting pleadings, or affidavits, and attending to arguing the matter before a judge and so on. Not to say the other aspects of litigation are not difficult; the latter items are however best suited for advocates to attend to.

 

Do advocates give legal opinions on legal matters?

 

Advocates would furthermore also be asked to give their legal opinion on a legal matter. An attorney would usually meet with his or her client and discuss the problem at hand, and thereafter instruct an advocate to give his view on the matter. For example, if a client wants to know the prospects of success in a given legal case. The advocate would then spend time researching the law and finding answers to the legal issue at hand. Here again, this type of work would be best suited for an advocate.

Advocate High Court - Gauteng Johannesburg
Eastern Cape High Court (Bhisho)
Free State High Court (Bloemfontein)
Western Cape High Court (Cape Town)
KwaZulu-Natal High Court (Durban)
Eastern Cape High Court (Grahamstown)
South Gauteng High Court (Johannesburg)
Northern Cape High Court (Kimberley)
KwaZulu-Natal High Court (Pietermaritzburg)
Eastern Cape High Court (Port Elizabeth)
North Gauteng High Court (Pretoria)
Limpopo High Court (Thohoyandou)
Eastern Cape High Court (Mthatha)
North West High Court, Mafikeng (Mmabatho) and
Polokwane Circuit Court of the North Gauteng High Court, Pretoria

Where are the High Courts in South Africa?

 

In South Africa, we have 14 (fourteen) divisions of the High Court. They are as follows

 

Eastern Cape High Court (Bhisho)

Free State High Court (Bloemfontein)

Western Cape High Court (Cape Town)

KwaZulu-Natal High Court (Durban)

Eastern Cape High Court (Grahamstown)

South Gauteng High Court (Johannesburg)

Northern Cape High Court (Kimberley)

KwaZulu-Natal High Court (Pietermaritzburg)

Eastern Cape High Court (Port Elizabeth)

North Gauteng High Court (Pretoria)

Limpopo High Court (Thohoyandou)

Eastern Cape High Court (Mthatha)

North West High Court, Mafikeng (Mmabatho) and

Polokwane Circuit Court of the North Gauteng High Court, Pretoria

There is also circuit court.

 

Do advocates appear in the Magistrate’s Court?

Furthermore, advocates also appear in the lower courts. For example, the Magistrates’ Court,

Maintenance Court, Children’s Court and so on. Many times, complicated issues arise in matters that are adjudicated in the Magistrate’s Court. For example, big corporates fighting over an issue that is best suited for the Magistrate’s Court. In those cases, it would be prudent to instruct and advocate with the necessary experience and skills.

Advocate High Court - Gauteng Johannesburg
Eastern Cape High Court (Bhisho)
Free State High Court (Bloemfontein)
Western Cape High Court (Cape Town)
KwaZulu-Natal High Court (Durban)
Eastern Cape High Court (Grahamstown)
South Gauteng High Court (Johannesburg)
Northern Cape High Court (Kimberley)
KwaZulu-Natal High Court (Pietermaritzburg)
Eastern Cape High Court (Port Elizabeth)
North Gauteng High Court (Pretoria)
Limpopo High Court (Thohoyandou)
Eastern Cape High Court (Mthatha)
North West High Court, Mafikeng (Mmabatho) and
Polokwane Circuit Court of the North Gauteng High Court, Pretoria

Do advocates do criminal work?

If there is a criminal matter pending in the High Court, usually an advocate would be briefed to attend to it. However, as stated, some attorneys have rights of appearance in the High Court. Advocates would usually attend to criminal matters in the Magistrates’ Court as well. This would either be District Court matters, or Regional Court matters. As you would have guessed, the High Court would deal with more serious offences.

 

We would like to hear from Advocate Muhammad Abduroaf

 

We asked advocate Muhammad Abduroaf, a practising advocate of the High Court of South Africa some questions regarding the advocate’s profession. He has over a decade and a half of litigation experience.

 

Legal Experience:

Our Lawyer: When were you admitted as an advocate of the High Court of South Africa?

Advocate Abduroaf: I was admitted as an advocate of the High Court of South Africa in 2003. It feels like yesterday when the Judge President and Deputy Judge President of the Western Cape High Court admitted me. That time, it was still called the Cape of Good Hope Provincial Division of the High Court.

Advocate High Court - Gauteng Johannesburg
Eastern Cape High Court (Bhisho)
Free State High Court (Bloemfontein)
Western Cape High Court (Cape Town)
KwaZulu-Natal High Court (Durban)
Eastern Cape High Court (Grahamstown)
South Gauteng High Court (Johannesburg)
Northern Cape High Court (Kimberley)
KwaZulu-Natal High Court (Pietermaritzburg)
Eastern Cape High Court (Port Elizabeth)
North Gauteng High Court (Pretoria)
Limpopo High Court (Thohoyandou)
Eastern Cape High Court (Mthatha)
North West High Court, Mafikeng (Mmabatho) and
Polokwane Circuit Court of the North Gauteng High Court, Pretoria

Our Lawyer: What are your academic qualifications

Advocate Abduroaf: I hold an LL.B and an LL.M (Master of Laws), both from the University of the Western Cape. However, to become an advocate, you only require an LL.B.

 

Our Lawyer: What do you believe are the qualities required to become an advocate?

Advocate Abduroaf: I think hard work and dedication is the key recipe to be a good advocate. One thing for sure, you cannot be lazy. You will not make it out there if you are.

 

Our Lawyer: Is it hard practising as an advocate?

Advocate Abduroaf? Initially, it was very challenging. As you gain more experience, it becomes easier. It’s like anything in life, the more you focus on perfecting it, the easier it gets. There are still times when I am faced with a challenging case. I then dig deep and do my best.

 

Our Lawyer: How do you cope with being an advocate?

Advocate Abduroaf. Firstly, I try to live a balanced life. Focusing on various aspects of life, and not only work. As an advocate, your most valued tool is your mind. If your mind is not sharp, you would be disadvantaged. I, therefore, try to keep fit and live a healthy balanced lifestyle.

 

Our Lawyer: Are there cases you do not like to do?

Advocate Abduroaf: I love the law and enjoy practising it. However, there are times when you are faced with challenges. For example, the case that comes to you is in a mess, or your client has a week case, but still wishes to proceed. In such a case, things become challenging as you will most of the time be on the back-foot.

Advocate High Court - Gauteng Johannesburg
Advocate High Court – Gauteng JohannesburgEastern Cape High Court (Bhisho)
Free State High Court (Bloemfontein)
Western Cape High Court (Cape Town)
KwaZulu-Natal High Court (Durban)
Eastern Cape High Court (Grahamstown)
South Gauteng High Court (Johannesburg)
Northern Cape High Court (Kimberley)
KwaZulu-Natal High Court (Pietermaritzburg)
Eastern Cape High Court (Port Elizabeth)
North Gauteng High Court (Pretoria)
Limpopo High Court (Thohoyandou)
Eastern Cape High Court (Mthatha)
North West High Court, Mafikeng (Mmabatho) and
Polokwane Circuit Court of the North Gauteng High Court, Pretoria
clients in other cities or provinces?

Advocate Abduroaf: If the need arises and the client is willing to pay for the additional costs, then I would be happy to attend to matters in courts outside of Cape Town. Depending on where the court is situated, I would either fly down the morning or fly the night before.

 

Our Lawyer: Any last words for aspiring advocates out there?

Advocate Abduroaf: Work hard, focus, and keep your head down and don’t look around. The next thing you know, you will be the best out there.

Eastern Cape High Court (Bhisho)
Free State High Court (Bloemfontein)
Western Cape High Court (Cape Town)
KwaZulu-Natal High Court (Durban)
Eastern Cape High Court (Grahamstown)
South Gauteng High Court (Johannesburg)
Northern Cape High Court (Kimberley)
KwaZulu-Natal High Court (Pietermaritzburg)
Eastern Cape High Court (Port Elizabeth)
North Gauteng High Court (Pretoria)
Limpopo High Court (Thohoyandou)
Eastern Cape High Court (Mthatha)
North West High Court, Mafikeng (Mmabatho) and
Polokwane Circuit Court of the North Gauteng High Court, Pretoria

 

Related Post

Relocation consent for minor child to Germany - Adv Muhammad Abduroaf

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

Germany 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 Germany, if a minor child will be joining that parent and also relocating to Germany, 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 Germany. Before we do so, let us list the various cities and towns in Germany to which you may want to relocate: Baden-Württemberg , Aalen , Bad Mergentheim , Baden-Baden , Bruchsal , Esslingen , Freiburg im Breisgau , Freudenstadt , Friedrichshafen , Göppingen , Hechingen , Heidelberg , Heilbronn , Karlsruhe , Konstanz , Ludwigsburg , Mannheim , Offenburg , Pforzheim , Ravensburg , Reutlingen , Schwäbisch Gmünd , Schwäbisch Hall , Stuttgart , Tübingen , Ulm , Bavaria , Amberg , Ansbach , Aschaffenburg , Augsburg , Bad Reichenhall , Bamberg , Bayreuth , Berchtesgaden , Coburg , Dachau , Deggendorf , Dinkelsbühl , Donauwörth , Erlangen , Freising , Fürth , Füssen , Garmisch-Partenkirchen , Ingolstadt , Kempten , Landshut , Lindau , Memmingen , Mittenwald , Munich , Nördlingen , Nürnberg , Passau , Regensburg , Rothenburg ob der Tauber , Würzburg , Berlin , Berlin , Charlottenburg (district) , Spandau (area) , Tempelhof (area) , Tiergarten (area) , Brandenburg , Brandenburg , Cottbus , Eberswalde , Frankfurt an der Oder , Potsdam , Schwedt , Bremen , Bremen , Bremerhaven , Hamburg , Hamburg , Altona (district) , Hessen , Bad Homburg , Darmstadt , Frankfurt am Main , Fulda , Giessen , Hanau , Kassel , Lorsch , Marburg , Offenbach , Rüdesheim , Wiesbaden , Lower Saxony , Bad Gandersheim , Bad Harzburg , Braunschweig , Celle , Cuxhaven , Delmenhorst , Emden , Goslar , Göttingen , Hameln , Hannover , Helmstedt , Hildesheim , Lüneburg , Oldenburg , Osnabrück , Salzgitter , Stade , Wilhelmshaven , Wolfsburg , Mecklenburg-West Pomerania , Greifswald , Güstrow , Neubrandenburg , Peenemünde , Rostock , Schwerin , Stralsund , Wismar , North Rhine-Westphalia , Aachen , Arnsberg , Bad Godesberg , Bergisch Gladbach , Bielefeld , Bocholt , Bochum , Bonn , Bottrop , Brühl , Castrop-Rauxel , Cologne , Detmold , Dorsten , Dortmund , Duisburg , Düren , Düsseldorf , Essen , Gelsenkirchen , Gladbeck , Gütersloh , Hagen , Hamm , Herne , Hürth , Iserlohn , Jülich , Kleve , Königswinter , Krefeld , Leverkusen , Lüdenscheid , Lünen , Marl , Minden , Moers , Mönchengladbach , Mülheim an der Ruhr , Münster , Neuss , Paderborn , Recklinghausen , Remscheid , Rheine , Siegen , Soest , Solingen , Wesel , Witten , Wuppertal , Rhineland-Palatinate , Bad Kreuznach , Bingen , Boppard , Frankenthal , Kaiserslautern , Koblenz , Landau , Ludwigshafen , Mainz , Neustadt an der Weinstrasse , Speyer , Trier , Worms , Saarland , Homburg , Reinheim , Saarbrücken , Saarlouis , Saxony , Altenburg , Annaberg-Buchholz , Bautzen , Chemnitz , Dresden , Freiberg , Görlitz , Hoyerswerda , Leipzig , Meissen , Torgau , Zittau , Zwickau , Saxony-Anhalt , Bernburg , Dessau , Eisleben , Halberstadt , Halle , Köthen , Merseburg , Naumburg , Quedlinburg , Stendal , Wernigerode , Wittenberg , Schleswig-Holstein , Büsum , Eutin , Flensburg , Glückstadt , Kiel , Lübeck , Rendsburg , Schleswig , Thuringia , Arnstadt , Eisenach , Erfurt , Gera , Gotha , Jena , Meiningen , Mühlhausen , Nordhausen , Suhl , Weimar (https://www.britannica.com/topic/list-of-cities-and-towns-in-Germany-2038874)

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

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 Germany. 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 Germany. Even if the minor child only wants to go for a short holiday to Germany, both guardians’ Consent would be required.

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

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 Germany. 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 Germany.

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

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 Germany, 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 Germany

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 Germany. 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 Germany.

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

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 Germany?

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 Germany, 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 Germany, then the Court will make an Order similar to that which is shown below. [caption id="attachment_10782" align="alignnone" width="470"]Relocation consent for minor child to Germany - Adv Muhammad Abduroaf Relocation Consent Order[/caption] [caption id="attachment_10783" align="alignnone" width="483"]Relocation consent for minor child to Germany - Adv Muhammad Abduroaf Relocation Consent Order[/caption]

How do I strategies my child maintenance case? I am struggling to grasp how to approach my maintenance matter. Please give me some advice?

As with any legal matter where you have a dispute, you need to have a strategy or a plan to be successful. Without a strategy or plan, you are just hoping for the best. However, hope does not steer a boat to shore. There are some, and in most cases, a lot of work, planning and thinking. Let’s face it, the other party or parent in your legal matter also has a plan or strategy. Suppose they put the necessary energy into executing it for the intended results, or at least more than what you are putting into it; their results will favour them much more. That is so, despite all the hope you put into it.

Understand the maintenance laws and how it works

But before we move on, with any plan or strategy, comes knowledge. It would do little good if you did not research how child maintenance works, the legal process, and what outcomes are possible. With all the information online, it is expected that you would watch some online videos on child maintenance and read some of the many articles on the topic. Knowledge is key, and that is what is going to get you through your case.

What are the basic principles in a child maintenance matter?

We would not say child maintenance matters are simple. Very few, if any, legal matters are simple. But anyone can learn. However, if you are guided by the principle that the maintenance amount payable is based on what the child costs, you are getting somewhere. That is your starting point and stay focused on that. Not what the parents earn or what they own. That is secondary. It does not mean that if a parent earns R 50 000 – 00 a month, that they should pay R 10 000 – 00 a month, despite the child costing R 1 000 – 00 a month. At best, the most the parent would pay is R 1 000 – 00. It would help if you worked from the ground up.

You need to focus on two words, “reasonable”, and “necessary.”

The child’s expenses must be reasonable and necessary for you to convince a Court to allow those expenses. In other words, force a parent to contribute towards it. In determining what is reasonable and necessary, one would look at what the child needs for daily living and whether that falls within the standard of living of the parents and the child. For example, if the parents are modest salary earners, living in humble homes, and were brought up in the same way, then that would be what the minor child would be entitled to when calculating child maintenance. If the parents never had ponies as pets, then a pony would not amount to a reasonable and necessary expense for the minor child. However, it is up to you to explain to the court why an expense is “reasonable” and “necessary”. If you can do so for a pony, then you did a good job.

Look at the means or money available in the maintenance equation

The principle one must move towards is that parents have to contribute towards the minor child based on their means. Remember, their contribution is firstly based on what the child costs and not what the earnings and wealth of the parents are. Then we need to look at what the parents can afford. Now affordability is not only based on your income, but also on your assets. If a parent does not have an income but owns expensive assets, then that has to be taken into account. Think of it this way – a parent can convert that asset into money by selling the asset.

Remember, parents have to live as well (They also have expenses)

It is not that simple just to take the gross or net salary of the parent and then work out the maintenance payable from there, based on the needs of the child. If that was the case, then maintenance matters would be resolved much quicker. Parents have expenses that need to be factored into the equation. Hold that in mind all the time because that principle applies to you. Therefore, in order for a parent to earn a salary to pay child support, he or she needs to eat at work, buy clothes for work, travel to work and so on. Circumstances need to be assessed on what they are and not what one hopes them to be. If the parents cannot afford for the child to be enrolled at a specific school, then that is what one must accept and be happy with a less expensive school for your child.

Analyse the situation from all angles

Once you have analysed the situation, take stock of the fact that all factors need to be looked at. You need to focus on what is reasonable. Reasonability applies to all aspects of the child maintenance equation. This includes the reasonable needs of the minor child, considering the income and means of the parents. When focusing on the child, determine whether or not his or her expenses are reasonable considering the standard of living and your position in life. Does the child need everything, or are there some items that you now require seeing that the child is older or circumstances have changed?

Are the parents spending reasonably?

Look at your situation and that of the other parent as well. Is it reasonable for him or her to spend R 2000 – 00 on fuel to go to work when he or she can take public transport? This is so even though this parent earns R 6000 – 00 a month. This must be considered in conjunction with what the needs of the child are. If the parent says he or she cannot afford to pay half the school fees, which is a reasonable amount, then one needs to question whether under the circumstances using up a third of your income for fuel is reasonable, where after you are unable to pay towards your child’s school fees.

Create arguments to support your point of view

Remember, you need to convince the maintenance court that what you are requesting as child support is reasonable. Reasonable based on the facts before the court or at hand, and not what one party wishes it to be. And those facts are also your income, expenses, as well as that of the other parent. Let us not forget the standard of living. This is important as we all want what is best for our children. However, not all families can afford to send their children to the most expensive schools. For many, it is not sustainable. On the other hand, parents should contribute toward their minor children, which is fair and reasonable. What is fair and reasonable is determined based on the information and facts at hand. Furthermore, what is fair and reasonable for one family will definitely not be fair and reasonable for another family. This is so despite both families having the same number of children and ages. All families and children are unique. In conclusion, if you understand the above general principles, you would find it easier to deal with and handle your child maintenance case. You will focus on what is necessary in order to be successful. Good luck with your maintenance matter.  

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