Appeals and Reviews – How does it work?

Appeals in court cases typically involve requesting a higher court to review a decision made by a lower court. For example, approaching the High Court to review the decision in the Magistrates Court matter.
The process usually begins with filing a notice of appeal, outlining the grounds for the appeal and providing the necessary documents to support the case. The appellate court will then review the lower court’s decision and determine whether any errors were made. If successful, the appellate court may either overturn the decision, order a new trial, or modify the original ruling.
It’s important to seek legal assistance to navigate the complexities of the appeals process effectively. If you need legal assistance with appeals or reviews, consider reaching out to a qualified attorney or advocate for guidance.
Getting Legal Assistance with Appeals If you require legal assistance or representation with your appeal matter, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.
Posted on by Telelaw

Appeals and Reviews – How does it work?

Appeals in court cases typically involve requesting a higher court to review a decision made by a lower court. For example, approaching the High Court to review the decision in the Magistrates Court matter.
The process usually begins with filing a notice of appeal, outlining the grounds for the appeal and providing the necessary documents to support the case. The appellate court will then review the lower court’s decision and determine whether any errors were made. If successful, the appellate court may either overturn the decision, order a new trial, or modify the original ruling.
It’s important to seek legal assistance to navigate the complexities of the appeals process effectively. If you need legal assistance with appeals or reviews, consider reaching out to a qualified attorney or advocate for guidance.
Getting Legal Assistance with Appeals If you require legal assistance or representation with your appeal matter, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.

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Child Custody, Contact rights and more – Children’s Act 38 of 2005

This article gives a  short introduction to the Children’s Act.

The Children’s Act 38 of 2005 was a very welcomed piece of legislation. It assists us in answering many issues relating to Family Law. For example. What are the rights of unmarried fathers? Do I as a father of a child born out of wedlock have rights? Do I as a father of a child born in terms of a religious marriage have rights?

Parents who are involved in disputes regarding their children should educate themselves on the provisions of the Children’s Act.

Challenges for unmarried fathers

In our view, unmarried fathers almost always experienced difficulties regarding access to their children if they were separated from their mother. What is even worse, is if a couple was married in terms of religion or custom, and not civilly (e.g. in Court), and the parties separated, where the unmarried father’s position would be the same as that of an unmarried father who was never married to the mother religiously or customary.

Rights of Unmarried Fathers in South Africa

However, if a party was married civilly and divorced, the Divorce Court in the past would deal with the issue of care and contact in relation to the minor children. The usual phrase used was that the mother would have custody over the child, with the father having rights of reasonable access. The position has however improved with the inception of the Children’s Act 38 of 2005 for both divorced and unmarried fathers. As outlined below, an unmarried father would have rights over a child, akin to that of a married father, as long as certain conditions are met.

The persistent problem for unmarried parents

However, in our view, based on the custody and contact matters we dealt with since the inception of the Act, mothers are still seen as primary caregivers in practice, and if the mother does not want the father to have contact or care with the child or a say in his or her life, the father would still have to follow the procedures in the Act to give effect to his rights. Sometimes, approaching the Court is the only solution. However, on the whole, the Children’s Act 38 of 2005, is a step in the proper direction for unmarried fathers, and children born out of wedlock. We hope it would improve even more.

The coming into effect of the Children’s Act 38 (Act 38 of 2005)

All sections of the Children’s Act 38 (Act 38 of 2005) came into effect on 1 April 2010. The Children’s Act 38 of 2005 brought many changes regarding the responsibilities and rights of parents and children and also deals with other aspects regarding children, e.g. contraceptives and abortion, etc. Interesting to note are the following sections listed below, there are however others depending on your issues.

Parental responsibilities and rights

Section 18 of the children’s act 38 of 38 2005 states the following: (1) A person may have either full or specific parental responsibilities or 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 marriage (ii) Consent to the child adoption; (iii) Consent to the child departure or removal from the Republic; (iv) Consent to the child 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). We shall now deal with what the Children’s Act of 2005 says the meaning of care and contact are, which are not the traditional words used in the past. In the past, the courts and the legal fraternity used the terms custody and access. This was reflected in divorce papers. Now legal documents use the terms care and contact although some might disagree, it is respectfully submitted that custody is an aspect of care and the Children’s act provides broader responsibilities and rights in this regard.

Meaning of Care in the Children’s Act

The Children’s Act 38 of 2005 defines care as follows: Care in relation to a child, includes, where appropriate- (a) Within available means, providing the child with- (i) a suitable place to live; (ii) Living conditions that are conducive to the child’s health well-being and development; and (iii) The necessary financial support; (b) Safeguarding and promoting the well-being of the child; (c) protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards; (d) respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child rights set out in the Bill of Rights and the principles set out in Chapter 2 of this Act; (e) guiding, directing and securing the child education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child age, maturity and stage of development; guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child age, maturity and stage of development; (g) Guiding the behaviour of the child in a humane manner; (h) Maintaining a sound relationship with the child; (I) accommodating any special needs that the child may have; and (j) Generally, ensuring that the best interests of the child is the paramount Concern in all matters affecting the child;

Meaning of Contact in the Children’s Act

According to the Children’s Act 38 of 2005, contact means the following: Contact in relation to a child, means- (a) Maintaining a personal relationship with the child; and (b) If the child lives with someone else- (I) communication on a regular basis with the child in person, including- (AA) visiting the child; or (Bb) being visited by the child; or (ii) Communication on a regular basis with the child in any other manner, Including- (AA) through the post; or (Bb) by telephone or any other form of electronic communication; It is my view that the Children’s Act 38 of 2005 attempts to place greater value to contact between parent and child. There are many sections in the Children’s Act 38 of 2005 that deals with parental responsibilities and rights of parents and children. Get hold of the Act and see how it applies to you. If you are an unmarried father and your rights are being limited by the mother of the child, I advise you to contact a family legal practitioner and discuss your rights with him or her. And to all unmarried fathers out there, fight for your rights as a father, this would be in the child’s best interest.

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

 

Family law legal matters can be very stressful. This is so whether you live in East London 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 East London. 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 East London or any other city in South Africa.

What to do before visiting the East London Children’s Court

Before you approach the Children’s Court in East London, 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. East London 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 East London 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 East London Children’s Court

The East London Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the East London 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 East London 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 East London.

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 East London Children’s Court

Once you complete the Form A and submit it to the Clerk of the East London 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 East London 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 East London Children’s Court

Once the East London 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 East London 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, East London, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Posted on by Telelaw

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