Child custody legal advice and services

Child custody is a complex legal matter as it involves a number of factors to consider when handling a child custody case. Judging from our years of experience, we found that the parents involved often lose track of the bigger picture while emotions override. At our law offices, our job is to help parties involved keep a level head form a legal perspective and guide them as to what will be the best way forward. Sometimes a matter has been blown out of proportion while the parties involved often expect us to perform miracles – this is not how it works in the world of law. We have found that executing our legal expertise can become a very complicated ordeal when there is little co-operation. It is however, essential to highlight that the main responsibility of the family legal expert is to advise and guide you with the best way forward from a legal standpoint.

The Children’s Act 38 of 2005 – child access to grandparents

In doing so, we have constructed a number of family legal articles containing free, expert legal advice. We have used the common issues potential clients come to us with, as a guide as to what address in these articles. For instance, we had a legal a matter in which the grandparents wanted to know what their chances are in gaining custody over their grandchild. The family legal expert then stated the following using the Children’s Act 38 of 2005:

The Children’s Act 38 of 2005

The Children’s Act is the main piece of legislation dealing with matters concerning children. Section 2 of the Children’s Act deals with its objective. Reading it would give you some type of understanding regarding the Act. It is quoted as follows: “2 Objects of Act The objects of this Act are- (a) to promote the preservation and strengthening of families; (b) to give effect to the following constitutional rights of children, namely- (i) family care or parental care or appropriate alternative care when removed from the family environment; (ii) social services; (iii) protection from maltreatment, neglect, abuse or degradation; and (iv) that the best interests of a child are of paramount importance in every matter concerning the child; (c) to give effect to the Republic’s obligations concerning the well-being of children in terms of international instruments binding on the Republic; (d) to make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children; (e) to strengthen and develop community structures which can assist in providing care and protection for children; (f) to protect children from discrimination, exploitation and any other physical, emotional or moral harm or hazards; (g) to provide care and protection to children who are in need of care and protection; (h) to recognise the special needs that children with disabilities may have; and (i) generally, to promote the protection, development and well-being of children.” As you can see, the Children’s Act’s object is very extensive, focused solely in the interests of the child. Now let us look at what does it say about the best interests of a child. For more information on this article, see Our only daughter is deceased. Can the Court give us sole custody and guardianship over our only grandchild, even if the father is still alive? What does the law say? Call our law offices on 021 424 3487 and have an appointment made online for you by our friendly receptionist today!

Grounds for full custody – child access, child maintenance and divorce

When it comes to child custody grounds, there are different variables at play. Most times, if the one parent happens to be unstable, the grounds for custody will lean more strongly towards the other parent, understandably so. Having said that, a child access matter will have issues of visitation rights, divorce, child maintenance and drafting of parenting plans. These all go hand in hand when dealing with child custody. Enjoy some of our free, expert legal advice articles below which could be of help for your when it comes to child custody legal matters. Call our law offices on 021 424 3487 and have an appointment made online for you by our friendly receptionist today!

Legal advice articles – child custody, parenting plans and divorce

The articles below have been well crafted by the legal expert himself for your convenience:

Do feel free to visit our frequently asked questions page on child custody in which you can gain some clarity on the matter. Connect with us today and have an appointment made online for you!

Posted on 11 February 2025 by Telelaw

Child custody legal advice and services

At our law offices, our job is to help parties involved keep a level head form a legal perspective and guide them as to what will be the best way forward. Sometimes a matter has been blown out of proportion while the parties involved often expect us to perform miracles – this is not how it works in the world of law.

We have found that executing our legal expertise can become a very complicated ordeal when there is little co-operation. It is however, essential to highlight that the main responsibility of the family legal expert is to advise and guide you with the best way forward from a legal standpoint.

The Children’s Act 38 of 2005 – child access to grandparents

The Children’s Act 38 of 2005

“2 Objects of Act

The objects of this Act are-

(a) to promote the preservation and strengthening of families;

(b) to give effect to the following constitutional rights of children, namely-

(i) family care or parental care or appropriate alternative care when removed from the family environment;

(ii) social services;

(iii) protection from maltreatment, neglect, abuse or degradation; and

(iv) that the best interests of a child are of paramount importance in every matter concerning the child;

(c) to give effect to the Republic’s obligations concerning the well-being of children in terms of international instruments binding on the Republic;

(d) to make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children;

(e) to strengthen and develop community structures which can assist in providing care and protection for children;

(f) to protect children from discrimination, exploitation and any other physical, emotional or moral harm or hazards;

(g) to provide care and protection to children who are in need of care and protection;

(h) to recognise the special needs that children with disabilities may have; and

(i) generally, to promote the protection, development and well-being of children.”

As you can see, the Children’s Act’s object is very extensive, focused solely in the interests of the child. Now let us look at what does it say about the best interests of a child.

For more information on this article, see Our only daughter is deceased. Can the Court give us sole custody and guardianship over our only grandchild, even if the father is still alive? What does the law say?

Call our law offices on 021 424 3487 and have an appointment made online for you by our friendly receptionist today!

Grounds for full custody – child access, child maintenance and divorce

Having said that, a child access matter will have issues of visitation rights, divorce, child maintenance and drafting of parenting plans. These all go hand in hand when dealing with child custody.

Enjoy some of our free, expert legal advice articles below which could be of help for your when it comes to child custody legal matters. Call our law offices on 021 424 3487 and have an appointment made online for you by our friendly receptionist today!

Legal advice articles – child custody, parenting plans and divorce

The articles below have been well crafted by the legal expert himself for your convenience:

Do feel free to visit our frequently asked questions page on child custody in which you can gain some clarity on the matter.

Connect with us today and have an appointment made online for you!

Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Cape Town.
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 Cape Town
Whether you claim child maintenance in Cape Town, 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 Cape Town.
The maintenance scenario – Cape Town 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 Cape Town
The child is cared for by the mother who works in Cape Town
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 Cape Town
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 Cape Town, it would be the maintenance court in Cape Town. 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 Cape Town, 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 Cape Town Maintenance Court?
Once you have been notified of the maintenance court date by the Cape Town 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 Cape Town?
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 Cape Town 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 Cape Town 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, Cape Town, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Posted on 11 February 2025 by Telelaw

Grandparent, Grandchildren, and the Law – Child Custody, Care and Guardianship
The caregiving of minor children is in principle, supposed to be the joint responsibility of both parents. It took two parents to bring the child into this world. However, equal sharing of the responsibilities is not always the case. Often, in a case of separation, responsibilities changes. The child lives primarily with one parent, and the other parent has reasonable contact, or sometimes less or none. In the scenario of reasonable contact, the child is still cared for by both parents, but not equally. Read on more to find out what does Advocate Muhammad Abduroaf say about this topic.

Equal caregiving of children

There are however cases where caregiving is shared equally – where the child lives for one week with the mother and the other with the father. But that becomes sometimes impractical when the parents live far from each other, and have different work schedules etc. If the child attends school closer to one parent’s home, he would have to wake up at different times each week, have different parents assist them with school work etc. However, if it can work, and is in the best interests of the child, it should be implemented.

Rights to third parties to minor children

But what happens when a third party, being a relative or otherwise, wants to have contact, care and guardianship over a minor child while one or both the parents are alive? We are not dealing with the issue of adoption – which is a completely different topic – but with the issue of whether other persons can also have rights to contact to a child. It is, however, safe to say that the parents’ rights of contact, custody and so on, would be limited to a certain extent.

Assignment of rights to grandparents

For the purposes of this article, you may ask yourself: Can grandparents be the caregivers of the child? Is this possible and does the law accommodate for a situation where non-biological parents have such rights? You will see below that the law does indeed allow for such a situation. Considering the title of this legal article, we will explore the scenario where maternal grandparents want to have primary care of a minor child after their daughter passed on in a case of a living father. The law mentioned can be applied to any scenario in which third parties are interested in having such rights assigned to the minor child. You may find the following articles interesting:

What law do we look at?

Well, first of all, we should always look at what is stated in the Constitution, Act 108 of 1996. The Constitution is supreme law in South Africa. What it says, is that a child’s best interests are of paramount importance in all matters concerning a child. This is something we already know. Then we look at legislation subordinate to the Constitution. In this case, we look at the Children’s Act 38 of 2005. This is where we are going to get our answers from.

The Children’s Act 38 of 2005

The Children’s Act is the main piece of legislation dealing with matters concerning children. Section 2 of the Children’s Act deals with its objective. Reading it would give you some type of understanding regarding the Act. It is quoted as follows: “2 Objects of Act The objects of this Act are- (a) to promote the preservation and strengthening of families; (b) to give effect to the following constitutional rights of children, namely- (i) family care or parental care or appropriate alternative care when removed from the family environment; (ii) social services; (iii) protection from maltreatment, neglect, abuse or degradation; and (iv) that the best interests of a child are of paramount importance in every matter concerning the child; (c) to give effect to the Republic’s obligations concerning the well-being of children in terms of international instruments binding on the Republic; (d) to make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children; (e) to strengthen and develop community structures which can assist in providing care and protection for children; (f) to protect children from discrimination, exploitation and any other physical, emotional or moral harm or hazards; (g) to provide care and protection to children who are in need of care and protection; (h) to recognise the special needs that children with disabilities may have; and (i) generally, to promote the protection, development and well-being of children.” As you can see, the Children’s Act’s object is very extensive, focused solely in the interests of the child. Now let us look at what does it say about the best interests of a child. [caption id="attachment_5104" align="alignleft" width="208"]

Make an Appointment with us Online[/caption] [caption id="attachment_5103" align="alignleft" width="203"]

View our Family Law Services[/caption]

Best interests of a child

So what is meant by: “the child’s best interests”? Let’s go one step further and by detecting this in our legislation. As mentioned earlier, our Constitution also refers to it. Section 9 of the Children’s Act 38 of 2005 states the following: “9 Best interests of child paramount In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.” Now, there you have it. The law does not look at the interests of the parents or third parties. The law looks at what is best for the child under the circumstances. Now we need to move on to the question this legal article addresses: What does the law say about grandparents or third parties obtaining rights of care, contact and guardianship over a child not born from them? For this, we refer to the Children’s Act. Here it refers to the latter persons as interested persons.

Assignment of contact and care to interested person by order of the court

As third parties do not have any inherent parental responsibilities and rights as parents do; rights are assigned by a Court. Now, what does the law say about assigning rights of contact and care to interested third parties? Here section 23 of the Children’s Act is of assistance. Section 23 is quoted as follows” “23 Assignment of contact and care to interested person by order of court (1) Any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in divorce matters or the children’s court for an order granting to the applicant, on such conditions as the court may deem necessary- (a) contact with the child; or (b) care of the child. (2) When considering an application contemplated in subsection (1), the court must take into account- (a) the best interests of the child; (b) the relationship between the applicant and the child, and any other relevant person and the child; (c) the degree of commitment that the applicant has shown towards the child; (d) the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and (e) any other fact that should, in the opinion of the court, be taken into account. (3) If in the course of the court proceedings it is brought to the attention of the court that an application for the adoption of the child has been made by another applicant, the court- (a) must request a family advocate, social worker or psychologist to furnish it with a report and recommendations as to what is in the best interests of the child; and (b) may suspend the first-mentioned application on any conditions it may determine. (4) The granting of care or contact to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child.” So, there we have it. In short, if you formed part of the child’s life and have an interest in having rights of care and contact – the court may afford you such rights. Therefore, should you divorce the mother of your step child, you may also claim rights of contact to your step-child in the divorce court. Now, what are the potential for rights of guardianship being assigned to third parties and grandparents over minor children? And what is the law state? Here too, the Children’s Act comes to our assistance.

Assignment of guardianship by order of the court

Now that you know that our maternal grandparents referred to in the scenario above or any other interested persons, may be assigned rights of care and contact. Now, let’s move on to the aspect of guardianship. Guardianship would refer to the consent for the application of a passport, leaving the Republic, alienating immovable property and so on in relation to a minor child. In this regard, section 24 of the Children’s Act would be of assistance. This section is quoted as follows: “24 Assignment of guardianship by order of court (1) Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant. (2) When considering an application contemplated in subsection (1), the court must take into account- (a) the best interests of the child; (b) the relationship between the applicant and the child, and any other relevant person and the child; and (c) any other fact that should, in the opinion of the court, be taken into account. (3) In the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child.” The provisions are self-explanatory. What is interesting to note is that only the High Court can assign rights of guardianship over a minor child. The potential problem in that regard is that it can become inaccessible as not all persons can afford to take matters to the High Court. Looking at section 24 (4) of the Children’s Act, in our scenario above where the grandparents want guardianship, but the father is still alive, they must submit very good reasons as to why the father if he is a guardian, is not suitable to have guardianship in respect of the child. One such reason may be that he is and never was involved in the child’s life.

Final words of maternal grandparents obtaining rights over their grandchildren

As can be seen above, it is possible for a non-parent to be assigned rights of care, contact and guardianship over a minor child. What the Court looks at is what interest you have, and whether your application is in the child’s best interest. Now let us look at what role the High Court play in children matters before we conclude.

The High Court in Children Matters

The High Court is the upper guardian of all minor children within its jurisdiction. Therefore, should a matter concerning a child be brought before it, it would be able to adjudicate the matter and make an order as to what is in the minor child’s best interests. Therefore, seeing that guardianship is such an important aspect in a minor child’s life, one can see why the legislature only afforded the High Court with the power to assign rights of guardianship to interested parties.

What to do if you want to be assigned with rights of care, contact and guardianship to a minor child

If you are an interested party in a minor child’s life and wish to be assigned rights of care, contact and guardianship; it is advised that you speak to a lawyer who is knowledgeable on sections 23 and 24 of the Children’s Act and familiar with Court Applications regarding minor children.

Have a family Law appointment with us

We have an online appointments system which enables you to save valuable time and cut straight to the chase. Therefore, there is no need for you to visit our offices (unless it is best for you to do so, or is your most preferred option). You may set up telephonic or video consultation should you wish to do so. You can, therefore, stay in the office or on the couch in the comfort of your own home when dealing with us. We are are a physical, online, set-up and ready to meet with you. Make your appointment online for a consultation today. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. Should you require any other legal services and advice, not related to family law, visit Private Legal. [caption id="attachment_5144" align="alignleft" width="183"] Advocate Muhammad Abduroaf - Western Cape High Court - Cape Town

Advocate Muhammad Abduroaf – Western Cape High Court – Cape Town[/caption] Or click here for the details of Cape Town Advocate, Muhammad Abduroaf or this advocate link to learn more. Visit our child custody and maintenance site for additional information. Post a family law question on:

Posted on 11 February 2025 by Telelaw

Legal advice for parents from an Advocate regarding care and contact disputes during the December / January School Holidays
The end of the year marks the start of the holiday season. Schools are closing, and most parents will be using their annual leave. It is the ideal time to spend time with family and friends and just rest and have fun. If you have children, you also want to spend quality time with them. This is especially so if not much time was spent together during the year. Ideally, both mom and dad would live in the same home as the children. However, that is not always the case. There are many reasons for that. It can relate to divorce, separation, or incompatibility. The list goes on. Regardless, each parent wants to spend quality time with their child during this festive season. And why should they not? Let us first deal with what divorced parents can do, then parents who were never married.
Parental Rights and responsibilities of divorced parents
In most cases, divorced parents would share parental rights and responsibilities of their minor children after they divorced. In other words, they would remain co-holders of parental responsibilities and rights over their minor children. Before the Court divorced the parents, it had to be satisfied that the arrangements regarding care and contact, maintenance and so on were satisfactory. In other words, it must be convinced that the arrangements are in the minor child’s best interest. The divorce parents are then left to care for the minor children as provided for in the divorce order. In most cases, there would be a consent paper with a parenting plan.
What happens if divorced parents have disputes regarding care and contact during the school holidays?
Divorced parents must stick to the care and contact arrangements outlined in the divorce order. If they do not, they will be contemptuous of the court order. The aggrieved party may lay a complaint at the police or launch a civil case for contempt of Court. This is best to be avoided. Nothing is limiting divorced parents from agreeing to alternative arrangements. However, it must be agreed upon. If issues arise, the parties need to revert to the terms of the Court Order. Sometimes a divorce order incorporates a clause dealing with the appointment of a parenting co-ordinator, or facilitator. Usually, this person would assist the parents in resolving minor disputes when it comes to care and contact. This would be done without deviating from the principles laid down in the divorce order dealing with care and contact. They would be especially useful should there be a dispute regarding how to split the December holidays between the parents.
Can divorced parents change the terms of the Divorce Court Order?
If one of the divorced parents has an issue with the terms of the divorce court order, and they believe a change to the terms of the Order would be in the minor children’s best interests, then they may approach the Court to vary the Court Order. The Court would only vary it after it heard from both parents and is convinced that it is in the minor children’s best interests. Usually, a reason for a change would be that the minor child is much older, and circumstances have changed. An example of a change in circumstances is that the minor child changed schools, and a change in residency would be best for them. If the divorce Order incorporated a clause dealing with the appointment of a parenting co-ordinator or facilitator, then the parent would first need to use them. That would, however, not be required if the change in the divorce order relates to something that the parenting co-ordinator or facilitator would not be able to assist the parents with.
What about parents who were never married?
Parents who were never married or married but separated do not have a court order to follow during the school holidays. It is hoped that they would be sensible and agree to an appropriate care and contact arrangement during the school holidays, which would suit both parents, especially the minor child. Separated parents who have issues with each other do not want to deal with the other parent, especially during the holiday season. However, it is unfortunate that the child is the one who suffers in the long run. Parents must understand that any conflict between them negatively affects their children. This is what you want to avoid at all costs. However, if the parents cannot come to an agreement, they need to remain civil and use other tools, referred to next.
What can separated parents do if they cannot agree on care and contact issues for the December holidays?
Parents need to understand that the law looks at what is best for the child and not the parents. It is, therefore, the duty of separated parents to put aside their prejudices for the other parent for the sake of the child’s wellbeing. If, however, separated parents cannot see eye to eye on what is best for the child, external assistance is needed. If the external assistance does not help much, the Court needs to be approached. Let’s discuss external assistance.
Parents must first try to mediate the care and contact disputes
It is understandable that not all separated parents would be able to resolve a care and contact matter independently. Sometimes, one parent is just outright unreasonable and does not focus on what is best for the child. In such a case, we recommend that the parents see a mediator to assist them in resolving the dispute. The mediator can either be a social worker, an attorney, or a local religious leader. Whoever it is, there must be a concerted effort to resolve the matter from both sides. Both parents should have a chance to speak, ask questions and resolve whatever issues they may have. We know that it is not always possible to do so. However, compromise is the key.
What happens if the mediation fails?
Mediation should assist any couple in resolving their issues for the most part. However, if they cannot compromise, the Court needs to be approached to apply its legal mind and determine what is best for the child concerned. The Court may want the input of a childcare expert, for example, the office of the family advocate or a social worker from a welfare organization. After the Court heard what both parties had to say, it would rule on what was in the minor child’s best interest. It does not mean the court would rule in your favour. However, it is possible that the court may find a middle ground that neither party is happy with.
When to seek legal advice
We recommend that you seek professional legal advice when things cannot be resolved between the parents, even with the assistance of a parenting co-ordinator, mediator or facilitator. If you cannot afford a lawyer, or cannot find one that offers their services pro bono, then approach the Children’s Court. Matters concerning children are inherently urgent, and it would not benefit the parties, nor the child, if things are delayed, especially so if a court needs to get involved. However, it does not mean that by seeing a lawyer, you must go to court. Maybe after consulting with the lawyer, you understand the law better and would be in a better position to resolve the matter on your own. The lawyer can also send the other party a letter. If that does not work, then approaching the court is justified. [caption id="attachment_10745" align="alignnone" width="300"] Adv. Muhammad Abduroaf – Trust Account Advocate[/caption]

Posted on 11 February 2025 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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Basic Divorce Guide for all courts in South Africa

Supplied by Adv. Muhammad Abduroaf (LL.B LL.M) (Advocate of the High Court of South Africa)

Legal Advice regarding divorces

If you want to get divorced from your spouse, I strongly advise that your approach a legal practitioner, or an attorney to attend to it on your behalf. This I would implore even more under the following circumstances: – There will be a dispute over care and visitation rights over the child/children; – One of the parties will be applying for forfeiture of patrimonial benefits from a marriage in community of property; -The joint estate is huge or complicated; or -The other party will be making use of legal representation.

General divorce procedures

If, however, you would like to know the general procedures on how to go about in obtaining a divorce decree; they are listed summarily below. Many rules regulate divorce processes and the summary below does exclude some of them. These include pretrial conferences, judicial case management, exceptions, strikeouts, compelling compliance, service addresses etc. Other matters incidental to divorce proceedings, for example, interim arrangements pending the divorce regarding maintenance for you or your children and care and contact regarding children are not dealt with. Therefore, please consult a legal practitioner or the divorce court throughout your divorce process should you decide to attend to the divorce yourself.

Summons and Particulars of Claim in a Divorce Matter

A summons needs to be drafted which should be issued by the divorce court to commence the divorce process. It should have on it the details of the court you will be issuing the divorce from, details of the parties, e.g. names, occupation, and address etc. Every High Court in the area where you live has the authority to attend to a divorce. You should then draft particulars of claim outlining relevant matters concerning the marriage, children, reasons for wanting a divorce and what do you want the court to grant you in a divorce order. The particulars of claim you attach to the summons. Once you have your summons and particulars of claim in order, you have to have the summons issued at court. To do this, make three (3) copies of your set of documents (Summons and Particulars of Claim) and have it issued at court.

Issuing and Service of a Divorce Summons

Once you are at the divorce court, go to the clerk/registrar of the court and have your documents issued. The clerk/registrar will sign the summons and provide a case number and insert it on the summons. You should then take the original and a copy (both must be signed and stamped by the clerk/registrar of the court) to the sheriff which serves documents where your spouse works of lives. You can ask the clerk/registrar of the court for those details. The extra—copy of the summons and particulars of claim you should keep for your file and records.

Notice of intention to defend in a divorce matter

Once the sheriff served the latter court documents, your spouse has two weeks to inform you whether he or she will be defending the divorce. This information is outlined in the summons. If your spouse decided not to defend the divorce action, then after a period of two weeks has elapsed, you may set the matter down as an undefended divorce. If your spouse intends to defend the divorce, he or she would then have to do what follows.

Plea to particulars of claim in a divorce matter

Once you received notice of your spouse’s intention to defend the divorce, about a month later, your spouse or his or her attorney should serve and file a plea. The plea should outline which parts of your particulars of claim your spouse agree to (or disagree to) which would give everyone a direction of what to prove in court.

Counter Claim in a divorce matter

Your spouse might want to file a counterclaim. In the same manner, as you outlined your case as to what you want from the court and the reasons therefore in your particulars of claim, your spouse can do this in a counterclaim. A counterclaim might still be filed if your spouse agrees to a divorce, but maybe wants primary care of the children, but in your particulars of claim, you asked for primary care. You should then within 10 (ten) days plead to the counterclaim in the same manner in which your spouse pleaded to your particulars of claim.

Obtaining a Trial date for your Divorce

Once you received the plea, with or without a counterclaim, or have pleaded to your spouse’s counterclaim, you should then approach the clerk/registrar of the court for a trial date. This you or your spouse may do. Various processes may take place up until obtaining a trial date. These include pre-trial conferences and judicial case management proceedings etc. I will not deal with those items herein.

Discovery in Divorce matters

While you are waiting for a trial date, and long before that date, you may ask or may be asked to provide under oath a schedule of books and documents in your possession and under your control relating to the divorce. This could be policy documents, title deeds etc., and which you or your spouse might want to make use of at trial. Once you received this schedule you may inspect and request copies of the documents.

Divorce day / Trial day

If your spouse does not defend the divorce within the allowed time period, go back to court and ask for an unopposed divorce date and attend to your divorce on that date. If however, your divorce is defended, a trial should ensure. During the trial, each party will prove his or her case. Witnesses will be called and at the end, the Magistrate or Judge will deliver the verdict. Best of luck, and please, don’t take my word, contact a legal practitioner should you decide to get divorced. Kind regards, Advocate Muhammad Abduroaf (Cape Town | Western Cape) LL.B & LL.M (Master of Laws) Constitutional Litigation Advocate of the High Court of South Africa Supplied by: Our Lawyer (Pty) Ltd Office: 0211110090 View the following related pages: Free DIY Online Divorce Guide and Form A divorce guide in PDF format A Sample Summons in Word format A Particulars of Claim in Word Format A notice of Set Down in Word Format

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