What are my rights and duties under a contract? Navigating the Complex Terrain of Contract Disputes: A Simplified Guide In the world of business and commerce, contracts serve as the backbone of transactions, defining the rights and obligations of parties involved. However, despite the careful crafting of these legal documents, Continue Reading
Telelaw
I want to get divorced as soon as possible with or without an attorney or advocate. What are the legal processes and best way to proceed?
Divorce involves a complex set of legal, financial, and emotional considerations, and people often have numerous questions when going through the process. While specific questions can vary based on individual circumstances, here are some frequently asked divorce questions along with general answers. Keep in mind that these are general guidelines and may not apply to every situation. Consultation with a legal professional (advocate or attorney) is recommended for personalized advice.- Q: How do I start the divorce process? A: The divorce process typically begins by filing a divorce summons with the appropriate court. Consult with an attorney or advocate to understand the specific procedures in your jurisdiction. Basically, the court you need to approach is where you or your spouse resides.
- Q: What are the grounds for divorce? A: Grounds for divorce are numerous, but may include irreconcilable differences, separation, adultery, cruelty, or abandonment. Basically, the marriage should have irretrievably broken down or cannot be saved.
- Q: How long does the divorce process take? A: The duration of the divorce process varies widely. It depends on factors such as the complexity of issues, cooperation between parties, and the court’s capacity or caseload. It can range from a few months to several years.
- Q: What is the difference between legal separation and divorce? A: Legal separation involves living apart and addressing issues such as child custody, support, and property division, but the couple remains married. In a divorce, the marriage is legally dissolved, and both parties can remarry.
- Q: How is property divided in a divorce? A: Property division depends on how you were married to your spouse. If you were married in community of property, then there would be an equal division. If you were married with the accrual regime, then there is no division, however payment of money to the other spouse. Consulting with a lawyer can help you best understand the specific rules regarding your marriage.
- Q: What happens to debts in a divorce? A: Debts acquired during the marriage are typically considered marital debts. These may be divided between the spouses during the divorce process. Consult with a legal professional to determine how debts are handled in your jurisdiction.
- Q: How is child custody determined? A: Child custody decisions aim to serve the best interests of the child. Factors such as the parents’ ability to provide a stable environment, financial situation, and the child’s preference (depending on age) may be considered.
- Q: How is child support calculated? A: Child support calculations are based on the needs of the child and means of the parents. They often take into account factors such as the income of both parents, the child’s needs, and the custodial arrangement. Child support guidelines are typically established by law.
- Q: Do I need a lawyer for my divorce? A: While it’s possible to navigate a divorce without a lawyer, legal representation is advisable, especially if there are complex issues involved. A lawyer (advocate or attorney) can help ensure your rights are protected and assist with navigating the legal process.
- Q: Can we settle our divorce without going to court? A: Yes, many divorces are settled through negotiation or alternative dispute resolution methods such as mediation or collaborative divorce. However, if an agreement cannot be reached, the case may proceed to court.
I need assistance with my divorce.
If you require legal representation or assistance with your divorce, feel free to schedule a consultation using the link www.ourlawyer.co.za/advice.
I want to get divorced as soon as possible with or without an attorney or advocate. What are the legal processes and best way to proceed? Divorce involves a complex set of legal, financial, and emotional considerations, and people often have numerous questions when going through the process. While specific Continue Reading
I am not happy with the Court’s decision. I believe it was unfair. What can I do? Can I take the decision on Appeal to the High Court, Supreme Court of Appeal, or the Constitutional Court?
If you have an issue that can best be resolved through a court of law, then instituting legal proceedings is what you must do. This would apply if someone owed you money, you have a dispute regarding your rights, or you want to have access to your child. If you were a party to a legal matter that was adjudicated in a Court of Law in South Africa, and you are not happy with the outcome, you have a right to appeal the decision. This article deals broadly with the issue of appeal to the High Court, Supreme Court of Appeal, or the Constitutional Court. Please note the appeal process from the Magistrate’s Court to the High Court is different from that of the High Court to the Supreme Court of Appeal and the Constitutional Court. Therefore, only take this article as a guide. Consult with an attorney or advocate should you require more, and specific information relating to your case.Trial or Application Court Decision:
The legal process typically begins with a trial or application court, where a judge or magistrate makes a decision on a case. This would be the court of first instance.Notice of Appeal:
If a party is dissatisfied with the decision of the court of first instance, they may file a notice of appeal within a specified time frame, indicating their intention to appeal. This document should be well drafted as the appeal court, court of first instance, and the parties involved would need to know what is the basis for your appeal.Obtaining the Record of Proceedings:
The appellant (party filing the appeal) must obtain a complete record of the proceedings from the trial court. This record includes the transcripts, evidence, and other relevant documents. Basically, the appeal court would determine whether the court of first instance erred in its judgment based on the information before it.Preparation of Appeal Documents:
The appellant, through legal representation, prepares the necessary appeal documents, which typically include a notice of appeal, a concise statement of the grounds of appeal, and other relevant documents.Filing the Appeal:
The appeal documents are filed with the appropriate appellate court, along with the required fees.Service on the Other Party:
The appellant is usually required to serve a copy of the appeal documents on the other party or parties involved in the case.Respondent’s Answering Affidavit:
The respondent (the other party) may file an answering affidavit responding to the grounds of appeal.Heads of Argument:
Both parties submit written arguments (heads of argument) outlining their legal positions to the court before the appeal hearing. This would assist the appeal court when dealing with the case.Appeal Hearing:
The appellate court conducts a hearing where both parties present their arguments. The court may ask questions, and the parties or their legal representatives may respond.Judgment:
The appeal court delivers a judgment either immediately after the hearing or at a later date. The judgment may affirm, set aside, or modify the decision of the trial court.Further Appeals:
In some cases, there may be the possibility of further appeals to higher courts, such as the Supreme Court of Appeal or the Constitutional Court, depending on the nature of the case. It’s crucial to consult with a legal professional or refer to the latest legal resources for the most up-to-date and accurate information on the appeal process in South Africa. Legal procedures can change, and specific details may vary depending on the type of case and the court involved. If you are unhappy with a court decision and require legal assistance regarding a possible appeal, feel free to contact us for assistance.
I am not happy with the Court’s decision. I believe it was unfair. What can I do? Can I take the decision on Appeal to the High Court, Supreme Court of Appeal, or the Constitutional Court? If you have an issue that can best be resolved through a court of Continue Reading
Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Lebowakgomo.
Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty to pay child maintenance and support their children. Once the child is self-supporting (being able to care for him or herself), the obligation falls away. This can happen when the child is 18, 20, or even 30. It all depends on the circumstances of the case.
Claiming child maintenance for your child in Lebowakgomo
Whether you claim child maintenance in Lebowakgomo, or any other city in South Africa, the procedures would be the same. There are however two (2) courts that can deal with child maintenance matters. That is a divorce court, in a divorce matter, and a Child Maintenance Court. For this article, we will focus on claiming maintenance in a Maintenance Court matter in Lebowakgomo.
The maintenance scenario – Lebowakgomo South Africa
In this article, we will deal with the following fictitious scenario, in a child maintenance matter:
- The Child is seven years old and attends school in Lebowakgomo
- The child is cared for by the mother who works in Lebowakgomo
- The mother works and earns a Salary of R 10 000
- The father sees the child every second weekend. He also lives and works in Lebowakgomo
- The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
- The father earns a reasonable salary and can afford the R 20 000 – 00 per month
- The mother claims R 4 000 – 00 maintenance as the father earns double her salary
What is the first step the mother must take in claiming child maintenance?
The first thing the mother must do is work out exactly what the child costs by item. She breaks down the minor child’s living expenses, starting from rent or accommodation to groceries to school fees etc. Once she has done that, she would need to determine what exactly does the minor child cost per month, seeing that she will be asking the father to contribute towards that. As best as possible, she needs to collect proof of expenses. This can be in the form of receipts.
How does she start the legal process?
The mother now needs to approach the maintenance court in the area where she lives or works to lodge a complaint for child maintenance. If she lives or works in Lebowakgomo, it would be the maintenance court in Lebowakgomo. She will complete a Form A wherein she will provide all the expenses for her and the minor child. She would also have to stipulate her income. Once she completed the form and submitted it to the maintenance court, she must then follow the next step.
What do you do while waiting for the maintenance court date?
While you wait to be informed of the court date by the Maintenance Court of Lebowakgomo, and up until the actual first court date, you need to ensure that you keep a record of all income and expenses for you and the child. This is very important as the court allocates maintenance based on recent income and expenses.
What happens at the first court appearance at the Lebowakgomo Maintenance Court?
Once you have been notified of the maintenance court date by the Lebowakgomo Maintenance Court, you need to ensure that you attend it. On that day, both you and the father of the child would appear before a maintenance officer. The maintenance officer would go through both your income and expenses as well as that of the father. If all the relevant information is not before the maintenance court, then the matter may be postponed in order for the parties to submit it.
The maintenance officer will try to settle the matter and have the parents come to an agreement regarding the amount of child maintenance to be paid. If they cannot come to an agreement regarding the child maintenance to be paid, the matter would have to proceed to a formal hearing or trial before a Magistrate.
How does the Maintenance Court hearing or trial work in Lebowakgomo?
Essentially, the maintenance court is called upon to make a fair ruling regarding what is a fair amount of child support that needs to be paid. For that to happen, the parents would have to give evidence in that regard. The mother would present to the court what the child costs, what she contributes and what she requires the other parent to pay. The Father would have a right to question the mother and to present evidence as to why he cannot afford the amount requested or why he feels it is an unfair amount. The mother can they also question him.
At the end of the day, the Lebowakgomo Maintenance Court would be able to properly determine what is a fair and adequate amount of child maintenance to pay after being presented will all relevant information. The Lebowakgomo Maintenance Court should play an active role in determining what is a fair amount of child maintenance the father should pay.
The above child maintenance application principles should apply to the following provinces and cities:
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, Lebowakgomo, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester
Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Lebowakgomo. Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty Continue Reading
Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Thabazimbi.
Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty to pay child maintenance and support their children. Once the child is self-supporting (being able to care for him or herself), the obligation falls away. This can happen when the child is 18, 20, or even 30. It all depends on the circumstances of the case.
Claiming child maintenance for your child in Thabazimbi
Whether you claim child maintenance in Thabazimbi, or any other city in South Africa, the procedures would be the same. There are however two (2) courts that can deal with child maintenance matters. That is a divorce court, in a divorce matter, and a Child Maintenance Court. For this article, we will focus on claiming maintenance in a Maintenance Court matter in Thabazimbi.
The maintenance scenario – Thabazimbi South Africa
In this article, we will deal with the following fictitious scenario, in a child maintenance matter:
- The Child is seven years old and attends school in Thabazimbi
- The child is cared for by the mother who works in Thabazimbi
- The mother works and earns a Salary of R 10 000
- The father sees the child every second weekend. He also lives and works in Thabazimbi
- The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
- The father earns a reasonable salary and can afford the R 20 000 – 00 per month
- The mother claims R 4 000 – 00 maintenance as the father earns double her salary
What is the first step the mother must take in claiming child maintenance?
The first thing the mother must do is work out exactly what the child costs by item. She breaks down the minor child’s living expenses, starting from rent or accommodation to groceries to school fees etc. Once she has done that, she would need to determine what exactly does the minor child cost per month, seeing that she will be asking the father to contribute towards that. As best as possible, she needs to collect proof of expenses. This can be in the form of receipts.
How does she start the legal process?
The mother now needs to approach the maintenance court in the area where she lives or works to lodge a complaint for child maintenance. If she lives or works in Thabazimbi, it would be the maintenance court in Thabazimbi. She will complete a Form A wherein she will provide all the expenses for her and the minor child. She would also have to stipulate her income. Once she completed the form and submitted it to the maintenance court, she must then follow the next step.
What do you do while waiting for the maintenance court date?
While you wait to be informed of the court date by the Maintenance Court of Thabazimbi, and up until the actual first court date, you need to ensure that you keep a record of all income and expenses for you and the child. This is very important as the court allocates maintenance based on recent income and expenses.
What happens at the first court appearance at the Thabazimbi Maintenance Court?
Once you have been notified of the maintenance court date by the Thabazimbi Maintenance Court, you need to ensure that you attend it. On that day, both you and the father of the child would appear before a maintenance officer. The maintenance officer would go through both your income and expenses as well as that of the father. If all the relevant information is not before the maintenance court, then the matter may be postponed in order for the parties to submit it.
The maintenance officer will try to settle the matter and have the parents come to an agreement regarding the amount of child maintenance to be paid. If they cannot come to an agreement regarding the child maintenance to be paid, the matter would have to proceed to a formal hearing or trial before a Magistrate.
How does the Maintenance Court hearing or trial work in Thabazimbi?
Essentially, the maintenance court is called upon to make a fair ruling regarding what is a fair amount of child support that needs to be paid. For that to happen, the parents would have to give evidence in that regard. The mother would present to the court what the child costs, what she contributes and what she requires the other parent to pay. The Father would have a right to question the mother and to present evidence as to why he cannot afford the amount requested or why he feels it is an unfair amount. The mother can they also question him.
At the end of the day, the Thabazimbi Maintenance Court would be able to properly determine what is a fair and adequate amount of child maintenance to pay after being presented will all relevant information. The Thabazimbi Maintenance Court should play an active role in determining what is a fair amount of child maintenance the father should pay.
The above child maintenance application principles should apply to the following provinces and cities:
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, Thabazimbi, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester
Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Thabazimbi. Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty Continue Reading
The limited-time Free 15 (fifteen) minute legal advice consultation on child custody (care and contact) matters during the National Lockdown ENDED
The free Free 15 (fifteen) minute legal advice consultation on child custody (care and contact) matters during the National Lockdown which was offered on 9 June 2020 ended on 24 August 2020. We hope all those who made use of the free service benefited from it. To make a legal advice consultation where a fee is applicable, kindly complete the form below.
The limited-time Free 15 (fifteen) minute legal advice consultation on child custody (care and contact) matters during the National Lockdown ENDED The free Free 15 (fifteen) minute legal advice consultation on child custody (care and contact) matters during the National Lockdown which was offered on 9 June 2020 ended on Continue Reading
Relocation Application and Consent – Our Lawyer
Relocation Application and Consent – Our Lawyer
Same-sex gay lesbian divorces Cape Town South Africa
Same-sex gay lesbian divorces Cape Town South Africa
Amendments to the Maintenance Act – Final Changes that took place in 2018 – Know your rights
Parents have a legal obligation to maintain their children. The same applies to spouses who have to maintain each other, and so on. This obligation should be exercised naturally. In other words, even if a parent did not know of the law enforcing child support, he or she should have a natural inclination to do so. Unfortunately, the true reality is that it is not the case. Countless parents are taken to the maintenance court every year due to not supporting, or inadequately supporting their children. And to be fair, there are parents who abuse the maintenance process who takes the parent to court who is already adequately contributing. Now, for the maintenance enforcement process to function, working mechanisms need to be in place. This is where the Maintenance Act 99 of 1998, and the Maintenance Amendment Act, 9 of 2015 come into play. Read on to learn more.The Maintenance Act 99 of 1998
Since or about 1998, the Maintenance Act 99 of 1998 was the main piece of legislation that was used for parents to obtain maintenance for their children. Other legal tools would be making an application in terms of High Court Rule 43 for interim maintenance in a divorce matter, and the Divorce Court would make a final order. In the Magistrate’s Court, rule 58 would apply. Then there is the Domestic Violence Act, which allows for emergency monetary relief. Notwithstanding the Maintenance Act being a great and useful tool, as time changed, so too did it have to do the same.Maintenance Amendment Act (Act No.9 of 2015)
On 5 January 2018, the entire Maintenance Amendment Act came into operation. In our view, it placed some sharp claws into the already existing Maintenance Act. Some changes to the Maintenance Act were cosmetic in a sense and other changes (or additions) toughened up the law. Sections 2, 11 and 13(b) of the Amendment Act, which is dealt with below, were not initially in operation due to it requiring Regulations to be created to make it work. It is however now in place. To make things easy, we unpacked the Maintenance Amendment Act (Act No.9 of 2015) and give our explanation as to how it better serves South Africans. Below we provide a summary of the amendments we find relevant to mention, as well as the actual amendments for your reference. You, therefore, do not need to read the entire article, unless you have to use it for court or other purposes. For your convenience, just click on the relevant summary below and it will jump to the relevant section of the Act further below.Summary of Changes brought by the Maintenance Amendment Act (Act No.9 of 2015)
- If there was a verbal or written maintenance agreement (which was not made an order of the court), the maintenance court can be approached to substitute or discharge it. [Section 6(c)]
- You may lodge a complaint at the maintenance court within the area of jurisdiction of where you reside, carry on business or are employed. [Section 6(2)]
- The maintenance court may issue a direction directing one or more electronic communications service providers to furnish the court with the contact information of the person a complaint has been made against to obtain his or her whereabouts. For example, Vodacom, MTN or Cell C can be approached to provide their client’s contact details. [Section 7(3)]
- The maintenance court can make an interim maintenance order even if the other party does not agree to it. [Section 10(6)]
- The maintenance court can provide your details to credit bureaus if you are in default and civil execution of a maintenance order took place. [Section 26(2A)]
- Non-compliance with maintenance orders could have you imprisoned for up to 3 (three) years. [Section 31]
Below are the relevant sections of the Maintenance Amendment Act (Act No.9 of 2015)
[ps2id id=’6c’ target=”/]
Substitution of section 6 of Act 99 of 1998
- The following section is hereby substituted for section 6 of the Maintenance Act, 1998 (hereafter referred to as the principal Act):
‘‘Complaints relating to maintenance
- (1) Whenever a complaint to the effect—
(a) that any person legally liable to maintain any other person fails to maintain the latter person; [or] (b) that good cause exists for the substitution or discharge of a maintenance order; or (c) that good cause exists for the substitution or discharge of a verbal or written agreement in respect of maintenance obligations in which respect there is no existing maintenance order, has been made and is lodged with a maintenance officer in the prescribed manner, the maintenance officer shall investigate that complaint in the prescribed manner and as provided in this Act. [ps2id id=’62’ target=”/] (2) After investigating the complaint, the maintenance officer may institute an enquiry in the maintenance court within the area of jurisdiction in which the person to be maintained, or the person in whose care the person to be maintained is, resides, carries on business or is employed with a view to enquiring into the provision of maintenance for the person so to be maintained.’’. [ps2id id=’73’ target=”/] Amendment of section 7 of Act 99 of 1998
- Section 7 of the principal Act is hereby amended by the addition of the following
subsection: ‘‘(3) (a) If a complaint is lodged with a maintenance officer in terms of section 6 and the maintenance officer, after all reasonable efforts to locate the whereabouts of the person who may be affected by an order which may be made by a maintenance court pursuant to the complaint so lodged, have failed, the maintenance officer may apply to the maintenance court, in the prescribed manner, to issue a direction as contemplated in this subsection. (b) If a maintenance court is satisfied that all reasonable efforts to locate the whereabouts of a person have failed, as contemplated in paragraph (a), the court may issue a direction in the prescribed form, directing one or more electronic communications service providers to furnish the court, in the prescribed manner, with the contact information of the person in question if that person is in fact a customer of the service provider. (c) If the maintenance court issues a direction in terms of paragraph (b) the maintenance court shall direct that the direction be served on the electronic communications service provider in the prescribed manner. (d) The information referred to in paragraph (b) shall be provided to the maintenance court within the time period set out by the court in the direction. (e) An electronic communications service provider on which a direction is served may, in the prescribed manner, apply to the maintenance court for— (i) an extension of the period referred to in paragraph (d) on the grounds that the information cannot be provided timeously; or (ii) the cancellation of the direction on the grounds that— (aa) it does not provide an electronic communications service in respect of the person referred to in the direction; or (bb) the requested information is not available in the records of the electronic communications service provider. (f) After receipt of an application referred to in paragraph (e), the maintenance court shall consider the application, give a decision in respect thereof and inform the electronic communications service provider, in the prescribed manner, of the outcome of the application. (g) The list of electronic communications service providers referred to in section 4(7) of the Protection from Harassment Act, 2011 (Act No. 17 of 2011), may be used by maintenance courts for purposes of this subsection. (h) The tariffs payable to electronic communications service providers for providing information as determined by the Minister in terms of section 4(8) of the Protection from Harassment Act, 2011, apply in the case of information required in terms of this subsection. (i) If the maintenance officer is of the opinion that the person lodging the complaint referred to in paragraph (a) is unable to pay the costs involved in the furnishing of information referred to in paragraph (b), the maintenance officer may at any time after the maintenance court issues a direction under the said paragraph (b), request the maintenance court to hold an enquiry into— (i) the means of the complainant; and (ii) any other circumstances which, in the opinion of the maintenance court, should be taken into consideration. (j) At the conclusion of the enquiry referred to in paragraph (i) the maintenance court may make such order as the court may deem fit relating to the payment of the costs involved in the furnishing of information referred to in paragraph (b), including an order directing the State, subject to section 20, to pay such costs within available resources, in the prescribed manner. (k) The maintenance court may, if it has ordered the State to pay the costs referred to in paragraph (j), upon the application of the maintenance officer, order the person affected by the order to refund the costs so paid by the State in terms of paragraph (j), in the prescribed manner. (l) For purposes of this subsection, ‘‘electronic communications service provider’’ means an entity or a person who is licensed or exempted from being licensed in terms of Chapter 3 of the Electronic Communications Act, 2005 (Act No. 36 of 2005), to provide an electronic communications service.’’. Amendment of section 9 of Act 99 of 1998
- Section 9 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:
‘‘(1) (a) A maintenance officer who has instituted an enquiry in a maintenance court may cause any person, including any person legally liable to maintain any other person or any person in whose favour a maintenance order has already been made, to be subpoenaed— (i) to appear before the maintenance court and give evidence; or (ii) to produce any book, document or statement. (b) A book, document or statement referred to in paragraph (a)(ii) includes— (i) any book, document or statement relating to the financial position of any person who is affected by the legal liability of a person to maintain any other person or in whose favour a maintenance order has been made; and (ii) in the case where such person is in the service of an employer, a statement which gives full particulars of his or her earnings and which is signed by the employer.’’.
[ps2id id=’106′ target=”/]
Amendment of section 10 of Act 99 of 1998, as amended by section 16 of Act 55 of
2003
- Section 10 of the principal Act is hereby amended by the addition of the following
subsection: ‘‘(6) (a) A maintenance court shall conclude maintenance enquiries as speedily as possible and shall ensure that postponements are limited in number and in duration. (b)A maintenance court may, where a maintenance order has not been made and a postponement of the enquiry is necessary and if the court is satisfied that— (i) there are sufficient grounds prior to such postponement indicating that one of the parties is legally liable to maintain a person or persons; and (ii) undue hardship may be suffered by the person or persons to be maintained as a result of the postponement, subject to paragraph (c), make an interim maintenance order which the maintenance court may make under section 16(1)(a). (c) When the maintenance court subsequently makes any order under section 16, the maintenance court may— (i) make an order confirming the interim maintenance order referred to in paragraph (b); or (ii) set aside such interim maintenance order or substitute it with any other order which the maintenance court may consider just in the circumstances.’’. Amendment of section 16 of Act 99 of 1998, as amended by section 17 of Act 55 of
2003
- Section 16 of the principal Act is hereby amended by the substitution for paragraph
(a) of subsection (2) of the following paragraph: ‘‘(2) (a) Any court— (i) that has at any time, whether before or after the commencement of this Act made a maintenance order under subsection (1)(a)(i) or (b)(i); (ii) that makes such a maintenance order; or (iii) that convicts any person of an offence referred to in section 31(1), shall, subject to paragraph (b)(i), make an order directing any person, including any administrator of a pension fund, who is obliged under any contract to pay any sums of money on a periodical basis to the person against whom the maintenance order in question has been or is made, to make on behalf of the latter person such periodical payments from moneys at present or in future owing or accruing to the latter person as may be required to be made in accordance with that maintenance order if that court is satisfied— (aa) where applicable, in the case of subparagraph (i), after hearing such evidence, either in writing or orally, as that court may consider necessary; (bb) where applicable, in the case of subparagraph (ii), after referring to the evidence adduced at the enquiry or the application for an order by default, as the case may be; or (cc) where applicable, in the case of subparagraph (iii), after referring to the evidence adduced at the trial; and (dd) where applicable, after hearing such evidence, either in writing or orally, of any person who is obliged under any contract to pay any sums of money on a periodical basis to the person against whom the maintenance order in question has been or is made, that it is not impracticable in the circumstances of the case: Provided that nothing precludes the court from making an order in terms of this subsection if it is of the opinion that any further postponement of the enquiry in order to obtain the evidence of the person referred to in subparagraph (dd) will give rise to an unreasonable delay in the finalisation of the enquiry, to the detriment of the person or persons to be maintained.’’.Substitution of section 17 of Act 99 of 1998
- The following section is hereby substituted for section 17 of the principal Act:
‘‘Orders by consent- (1) Any order referred to in section 16(1)(a) or (b) may be made [against any person not present] at the enquiry in the absence of one or both of the parties involved in the enquiry, if it is made in accordance with his or her or their consent in writing handed in by the maintenance officer at the enquiry.
(2) A copy of an order made [against any person not present] at the enquiry in the absence of one or both of the parties as provided for in subsection (1), shall be delivered or tendered to him or her or them, as the case may be, by any maintenance officer, police officer, sheriff or maintenance investigator, and the return of any such officer, sheriff or investigator showing that such copy was delivered or tendered to the particular person or persons shall be deemed to be sufficient proof of the fact that he or she was or they were aware of the terms of the order in question.’’.Amendment of section 18 of Act 99 of 1998
- Section 18 of the principal Act is hereby amended—
(a) by the substitution for subsection (1) of the following subsection: ‘‘(1) If a maintenance court is satisfied on the grounds of sufficient proof or otherwise— (a) that any person against whom an order may be or has been made under section 16(1)(a) or (b) or that any person in whose favour such an order has been made— (i) has knowledge of a subpoena issued under section 9; or (ii) has appeared before the court and was warned by the court to appear at a later date, time and place before the court; and (b) that he or she has failed to appear before the maintenance court on the date and at the time and place— (i) specified in such subpoena; or (ii) in accordance with a warning referred to in paragraph (a)(ii), the maintenance court may, on application of the maintenance officer for an order by default, call upon the person who has lodged the complaint to adduce such evidence, either in writing or orally, in support of his or her complaint as the maintenance court may consider necessary.’’; (b) by the substitution for subsection (3) of the following subsection: ‘‘(3) A copy of an order made [against] in respect of any person not present at the enquiry shall be delivered or tendered, as soon as may be practicable in the circumstances, to him or her by any maintenance officer, police officer, sheriff or maintenance investigator, and the return of any such officer, sheriff or investigator showing that such copy was delivered or tendered to the particular person shall be deemed to be sufficient proof of the fact that he or she was aware of the terms of the order in question.’’; and (c) by the substitution for paragraph (a) of subsection (4) of the following paragraph: ‘‘(a) The person [against] in respect of whom a maintenance court has made an order by default may apply to the maintenance court for the variation or setting aside of the order.’’. Substitution of section 20 of Act 99 of 1998
- The following section is hereby substituted for section 20 of the principal Act:
‘‘Orders as to costs of service and directions- The maintenance court holding an enquiry may, having regard to the conduct of the persons involved in the enquiry so far as it may be relevant, make such order as the maintenance court may consider just relating to the costs of—
(a) the service of process; and (b) obtaining the information contemplated in section 7(3).’’. Substitution of section 22 of Act 99 of 1998
- The following section is hereby substituted for section 22 of the principal Act:
‘‘Notice of substitution or discharge of maintenance orders- Whenever a maintenance court—
(a) makes an order under section 16(1)(b) in substitution of a maintenance order; or (b) discharges a maintenance order under section 16(1)(b), the maintenance order shall cease to be of force and effect only insofar as the court expressly, or by necessary implication, replaced that order or part thereof, and the maintenance officer shall forthwith give notice of the decision to the registrar or clerk of the court in the Republic where the maintenance order was issued or where the sentence concerned was imposed, as the case may be, who shall deal with the relevant records or registers in the prescribed manner.’’. Amendment of section 23 of Act 99 of 1998
- Section 23 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:
‘‘(1) Subject to the directions prescribed in connection with the transfer of maintenance orders, the maintenance officer [may] shall, in writing, direct the clerk of the court where a maintenance order was made to transmit the maintenance order, together with the prescribed records, to the clerk of the maintenance court within the area of jurisdiction of which the person in whose favour the maintenance order was made, or the person in whose care that person is, resides, carries on business or is employed.’’.
[ps2id id=’262a’ target=”/]Amendment of section 26 of Act 99 of 1998, as amended by section 18 of Act 42 of
2001 and section 18 of Act 55 of 2003
- Section 26 of the principal Act is hereby amended by the insertion after subsection (2) of the following subsection:
‘‘(2A) On the granting of an application contemplated in subsection (2) by a maintenance court, the maintenance officer or clerk of the court at the request of the maintenance officer, shall, notwithstanding anything to the contrary contained in any law, in the prescribed manner, furnish the particulars of the person against whom a maintenance order has been made and a certified copy of the order of the court contemplated in subsection (2)(a)(i), (ii) or (iii), to any business which has as its object the granting of credit or is involved in the credit rating of persons.’’. Amendment of section 28 of Act 99 of 1998
- Section 28 of the principal Act is hereby amended by the substitution for
subsection (1) of the following subsection: ‘‘(1) A maintenance court may— (a) on the application of a person referred to in section 26(2)(a); [or] (b) when such court suspends the warrant of execution under section 27 (4)(b)[,]; (c) when such court suspends the order for the attachment of debt under section 30(1); and (d) where applicable, after hearing the evidence, either in writing or orally, of the employer of the person in question, make an order for the attachment of any emoluments at present or in future owing or accruing to the person against whom the maintenance or other order in question was made to the amount necessary to cover the amount which the latter person has failed to pay, together with any interest thereon, as well as the costs of the attachment or execution, which order shall authorise any employer of the latter person to make on behalf of the latter person such payments as may be specified in the order from the emoluments of the latter person until such amount, interest and costs have been paid in full: Provided that nothing precludes the court from making an order in terms of this subsection if it is of the opinion that any further postponement of the enquiry in order to obtain the evidence of the person referred to in paragraph (d) will give rise to an unreasonable delay in the finalisation of the enquiry, to the detriment of the person or persons to be maintained.’’. [ps2id id=’31’ target=”/]Amendment of section 31 of Act 99 of 1998
- Section 31 of the principal Act is hereby amended—
(a) by the substitution for subsection (1) of the following subsection: ‘‘(1) Subject to the provisions of subsection (2), any person who fails to make any particular payment in accordance with a maintenance order shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding [one year] three years or to such imprisonment without the option of a fine.’’; and (b) by the substitution for subsection (4) of the following subsection: ‘‘(4) If a person has been convicted of an offence under this section, the maintenance officer [may] shall, notwithstanding anything to the contrary contained in any law, in the prescribed manner, furnish that person’s personal particulars to any business which has its object the granting of credit or is involved in the credit rating of persons.’’. Substitution of section 35 of Act 99 of 1998
- The following section is hereby substituted for section 35 of the principal Act:
‘‘Offences relating to maintenance enquiries- Any person who wilfully interrupts the proceedings at a maintenance enquiry or who wilfully hinders or obstructs the maintenance court in the performance of the maintenance court’s functions at the enquiry shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding [six months] one year or to both [such] a fine and such imprisonment.’’.
Substitution of section 38 of Act 99 of 1998
- The following section is hereby substituted for section 38 of the principal Act:
‘‘Offences relating to certain notices- Any person who—
(a) without sufficient cause, refuses or fails to make any payment in accordance with a notice under section 16(3)(a), 29(1) or 30(1); or (b) refuses or fails to give notice to a maintenance officer as required by section 16(3)(b) or 29 (2), shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding [six months] two years.’’.
Substitution of section 39 of Act 99 of 1998
- The following section is hereby substituted for section 39 of the principal Act:
‘‘Offences relating to notice of change of address- Any person who refuses or fails to give notice of any change of his or her place of residence or employment as required by section 16(4) shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding [six months] one year.’’.
Insertion of section 39A in Act 99 of 1998
- The following section is hereby inserted in the principal Act after section 39:
‘‘Offences relating to maintenance investigators 39A. (1) Any person who wilfully hinders or obstructs a maintenance investigator in the exercise of his or her powers or the performance of his or her duties shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year. (2) Any person, other than a clerk of the court who is requested to assist a maintenance investigator in the performance of his or her functions, who has not been appointed as a maintenance investigator in terms of this Act and who— (a) performs any function entrusted to a maintenance investigator under any law; or (b) pretends to be or makes use of any name, title or addition or description creating the impression that he or she is a maintenance investigator or is recognised by law as such, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.’’. Substitution of section 41 of Act 99 of 1998
- The following section is hereby substituted for section 41 of the principal Act:
‘‘Conversion of criminal proceedings into maintenance enquiry- If during the course of any proceedings in a magistrate’s court in
respect of— (a) an offence referred to in section 31(1); or (b) the enforcement of any sentence suspended on condition that the convicted person make periodical payments of sums of money towards the maintenance of any other person, it appears [to the court] on good cause shown that it is desirable that a maintenance enquiry be held, [or when the public prosecutor so requests, the court shall] the court may, of its own accord or at the request of the public prosecutor, convert the proceedings into such enquiry.’’.
Amendments to the Maintenance Act – Final Changes that took place in 2018 – Know your rights Parents have a legal obligation to maintain their children. The same applies to spouses who have to maintain each other, and so on. This obligation should be exercised naturally. In other words, even Continue Reading
Victory for Muslim Marriages in South Africa – Court gives the State 2 (two) years to enact legislation
[Re-post] On 31 August 2018, the Western Cape High Court handed down a ground-breaking judgment. In effect, it Orders the State to prepare, initiate, introduce, enact, and bring into operation, diligently, and without delay, legislation to recognise Muslim marriages. The High Court gave the State exactly two (2) years to attend to the latter process. This two (2) years would only be suspended if the matter is taken to the Constitutional Court. However, should the matter not be taken to the Constitutional Court for final determination, and the State does not enact the legislation, then by default, Muslim marriages may be dissolved in accordance with the Divorce Act 70 of 1979. Therefore, it is up to the State to action matters urgently. Download a Copy of the Judgment by clicking here.How does this benefit Muslim Marriages?
To understand how the judgment benefits Muslim Marriages, one needs to understand the legal nature of Muslim Marriages in South Africa. Let us refer to the judgment for some insight: In the judgment, the following is stated: “The issues before us concern recognition and regulation of marriages solemnised and celebrated according to the tenets of Islamic (also referred to as ‘Muslim marriages’). It is undisputed that marriages entered into in terms of the tenets of Islam have not been afforded legal recognition for all purposes. The applicants argue that non-recognition and non-regulation of these marriages violates the rights of women and children in particular in these marriages. According to them. the State has failed in its duty of respect, protect promote and fulfil the Bill of’ Rights as required in section 7(2) of the Constitution, in the face of its constitutional and international obligations and that the most effective way of dealing with this systemic violation of rights, is an enactment of statute. This approach. according to the applicants has been postulated by the courts in a number of judgments dealing with issues concerning Muslim marriages before.”What is the current state of Muslim Marriages?
Unfortunately, until the Muslim Marriages Act comes into operation, Muslim Marriages are not valid marriages in terms of South African Law. The consequences are however enforceable. For example, spousal support, succession, contracts etc. However, a Muslim spouse cannot get a divorce in terms of the Divorce Act, or make use of certain legislation as in the case of civil marriages. If a party is married in terms of civil law, he or she must approach a court of law for a valid divorce. That, unfortunately, does not apply to Muslim Marriages. Therefore, the Judgement is welcomed.The Judgment Order
To get a better understanding of what the order of the court was, you can read it below. Feel free to leave your comments below. Order [252] In the result. the following orders are proposed: 1 . It is declared that the State is obliged by section 7(2) of the Constitution to respect, protect, promote and fulfil the rights in sections 9, 10, 15. 28, 31 and 34 of the Constitution by preparing, initiating. introducing, enacting and bringing into operation. diligently and without delay as required by section 237 of the Constitution, legislation to recognise marriages solemnised in accordance with the tenets of Sharia law (‘Muslim marriages’) as valid marriages and to regulate the consequences of such recognition. 2. It is declared that the President and the Cabinet have failed to fulfil their respective constitutional obligations as stipulated in paragraph 1 above and such conduct is invalid. 3. The President and Cabinet together with Parliament are directed to rectify the failure within 24 months of the date of this order as contemplated in paragraph 1 above. 4. In the event that the contemplated legislation is referred to the Constitutional Court by the President in terms of section 79(4)(b) of the Constitution, or is referred by members of the National Assembly in terms of section 80 of the Constitution, the relevant deadline will be suspended pending the final determination of the matter by the Constitutional Court: 5. In the event that legislation as contemplated in paragraph 1 above is not enacted within 24 months from the date of this order or such later date as contemplated in paragraph 4 above, and until such time as the coming into force thereafter of such contemplated legislation, the following order shall come into effect: 5.1 It is declared that a union validly concluded as a marriage in terms of Sharia law and which subsists at the time this order becomes operative, may (even after its dissolution in terms of Sharia Law) be dissolved in accordance with the Divorce Act 79 of 1979 and all the provisions of the Act shall be applicable, provided that the provisions of section 7(3) shall apply to such a union regardless of when it was concluded: and 5.2 In the case of a husband who is a spouse in more than one Muslim marriage, the court shall: (a) take into consideration all relevant factors including any contract or agreement and must male any equitable order that it deems just; and (b) may order that any person who in the court’s opinion has a sufficient interest in the matter be joined in the proceedings. 5.3 If administrative or practical problems arise in the implementation of this order, any interested person may approach this Court for a variation of this order. 5.4 The Department of Home Affairs and the Department of Justice shall publish a summary of the orders in paragraphs 5.1 to 5.2 above widely in newspapers and on radio stations, whatever is feasible, without unreasonable delay. 6. An order directing the Minister of Justice to put in place policies and procedures regulating the holding of enquiries by the master of the High Court into the validity of marriages solemnised in accordance with the tenets of Islamic law is refused. 7. An order declaring the pro forma marriage contract attached as annexure “A” to the Women’s Legal Centre Trust’s founding affidavit, to be contrary to public policy is refused. 8. In respect of matters under case numbers 22481/2014 and 4406/2013, the president, the Minister of Justice and the Minister of Home Affairs are to pay the costs of the Women’s Legal Centre Trust respectively, such costs to include costs of three counsel to the extent of their employment. 9. In respect of the matter under case number 13877/2015: 9.1 Ruwayda Esau’s claim to a part of the Mogamat Riethaw estate, if any. is postponed for hearing at trial along with Parts B and E, of the particulars of claim. 9.2 The Cabinet and the Minister of justice shall pay Ruwayda Esau’s costs in respect of Claim A, such costs to include costs of two counsel to the extent of their employment. Download a Copy of the Judgment by clicking here. Feel free to leave your comments below.
Victory for Muslim Marriages in South Africa – Court gives the State 2 (two) years to enact legislation [Re-post] On 31 August 2018, the Western Cape High Court handed down a ground-breaking judgment. In effect, it Orders the State to prepare, initiate, introduce, enact, and bring into operation, diligently, and Continue Reading