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Posted on 11 February 2025 by Telelaw

Advocate of the High Court of South Africa – Cape Town
Not many people know about the advocates’ profession. They hear of them, see them on television and read about them in newspapers. But what are they, and what do they do? To answer some of these questions, we got hold of Advocate Muhammad Abduroaf a practicing advocate from Cape Town, Western Cape, to assist us in unpacking this much misunderstood profession.

Advocate Muhammad Abduroaf – Cape Town

Advocate Muhammad Abduroaf is an admitted advocate of the High Court of South Africa. He holds chambers in the Pinnacle Building, 33 Burg Street, Cape Town, South Africa. He has been practising as an advocate for much over a decade and holds a wealth of experience on the ins and outs of the profession. Advocate Abduroaf has an LL.B and LL.M (Master of Laws) Degree on his shoulders. To learn more about the life of an advocate, please read on.

Advocates of the High Court of South Africa

Advocates play a very important role in society. They advise and represent their clients in complicated legal issues on an array of matters. Although advocates usually appear in the Higher Courts (High Court, Supreme Court of Appeal and Constitutional Court etc.), they do on occasion appear in the magistrates or lower courts and other forums. In order be become an advocate, you are required to have the necessary academic training in the form of an LL. B degree (Bachelor of Laws). This degree usually takes no less than 4 (four) years to complete at an accredited South African university. Furthermore, only a judge in the High Court can admit you as an Advocate after filing the necessary application. Many advocates then go on to form part of a society of advocates. If you wish to become and advocate, you would need to file your application at the High Court in the area where you reside, attach to it the necessary documents, and set the matter down for hearing when the High Court hears such applications. Admissions of attorneys, advocates, notaries and conveyancers usually take place on the first Friday of each month in the High Court. The Judges who preside over such applications are usually the Judge President and a less senior judge. Once you are admitted as an advocate of the High Court of South Africa, your name would be added to the roll of advocates.

How do advocates of the High Court get work?

Advocates receive their work from attorneys. In other words, a person from the public cannot directly instruct an advocate to do work for him or her. There are however certain exceptions. However, from August 2018, advocates with Trust Accounts may take on an instruction from a member of the public. An attorney’s intervention would therefore not be required. Under the latter scenario, the client would act as the attorney, do all the work the attorney would usually do, and then instruct the advocate to do what she does best. Sticking to the current legal position, the role of an advocate is closely linked to that of an attorney. The Attorney would meet with, and initially consult with the client, take instructions, and request a deposit of some sort. The deposit would be paid into the attorneys Trust Account. Should the matter require an advocate, the attorney would prepare a brief (or case file), with all relevant information in it and forward it to the advocate. The advocate would then act on the brief or instruction of the attorney and bill the attorney accordingly for services rendered in the case. If for instance the attorney did not request a deposit from the client beforehand, and nonetheless instructed the advocate; the attorney is still obliged to pay the advocate her fee. That would be a risk the attorney is taking.

What type of work does advocates do for attorneys or clients?

Advocates would usually do work that the attorney’s practice does not cater for. An attorney is usually a general legal practitioner, who runs a law office. This would entail meeting with clients on a regular basis, taking calls, writing letters, filing documents at court etc. As seen above, attorneys also need to prepare briefs for advocates and pay them. Therefore, an attorney can be seen as a case manager when it comes to dealing with an advocate, and cases in general. Therefore, you would never see an advocate writing a letter of demand.

Court work in the Magistrates and High Courts

An Advocate would be briefed to draft pleadings (court documents) as well as legal opinions. This type of work is very focused and requires a few hours at a time to be set aside for it. Advocates then also need to prepare for trials. In this regard, the case needs to be studies, strategies formulated, and possible questions needs to be drawn up. It takes a lot of time to work out what are good questions to be asked in cross examination of witnesses. The right question, can be the deciding factor in winning or losing a case. Therefore, an advocates office cannot be burdened with daily administrative tasks which attorneys best do. Arguments in legal cases in the Higher Court or Magistrates Court At the end of a court case, lawyers need to provide arguments to court as to why their case should succeed. Now let’s say there were five witnesses that were called to provide evidence in a divorce case. Each of them provided evidence on the witness stand for about a day. At the end of evidence presented, and the close of each party’s case, the advocate needs to go back to his chambers to prepare closing arguments. She needs to focus and apply her mind in finding the most convincing arguments based on the evidence presented in order to succeed in her case. She will bear in mind that there is an advocate who may try to discredit her arguments should they be weak or incorrect. In motion or application procedures, evidence is provided in affidavit form. Therefore, the parties do not go on the witness stand and say what happened. They do so in an affidavit and submit it to Court. A typical case where motion procedure is appropriate would be Child Custody matters. Once all the parties submitted their affidavits to court, the parties’ legal representatives would file, what they term, heads of argument.

Legal Opinions on Legal Matters or Court Cases

What advocates are often asked to do is to draft opinions on legal matters. Opinions are very useful if you would like to know if you have a winning case beforehand, or what the law says about your specific situation. A lot of time gets spent on drafting an opinion. This is so as the nature of the legal advice required in the opinion is mostly complicated. It is always advisable to obtain an opinion before litigating or taking a matter to court. Spending some money on a well drafted opinion can save you a lot in the future. This is especially so if you do not have a solid case at the outset. Therefore, should you lose your case, you would have had to pay your lawyers as well as the lawyers for the other side. This could all have been avoided if an opinion on the merits of success in your matter was provided.

What do advocates charge attorneys or clients for their services?

An advocate has to charge a reasonable fee for her services. However, what is reasonable depends on the facts of each case. An advocate with years of experience, or an expert on a specific aspect of law, would obviously charge much more than someone who has limited experience in a specific branch of law. It could also be that the new Advocate on the block may even take much more time to learn the law and figure things out. But in general, depending on your years of experience as an advocate, and the nature of the service provided; would determine the fees charged. We trust above brief summary of what an advocate is and what she does, provided by Advocate Muhammad Abduroaf was useful. Visit this website again soon for more interesting articles on the legal profession and family law. We are conveniently situated at The Pinnacle, corner of Strand and Burg Street in the CBD, Cape Town, South Africa. Make use of our online appointment system which is efficient and stress free. Call our offices for an online appointment today.

Posted on 11 February 2025 by Telelaw

What are child custody disputes? Read some questions and answer from mother and father.
Child custody disputes are one aspect of family law that keeps both lawyers and the courts busy. Although child custody disputes may seem simple in the eyes of the outside observer, it is not always so for the parties involved. Parents care much more for their children than they do for worldly things. Therefore, should they experience problems concerning their children, it often causes a lot of anxiety and stress. Below are some questions mothers and fathers usually pose online when it comes to child custody disputes. Feel free to pose your questions below.
What are the rights of an unmarried father to his children?
Fathers of children born out of wedlock do not automatically have rights towards their children. For you to form part of such a child’s life you need to fulfil the requirements of section 21 of the Children’s Act, which in short states:
At the time of the child’s birth, you are living with the mother in a permanent life-partnership; and
You contribute or have attempted in good faith to contribute to the child’s upbringing for a reasonable period;
You contribute or have attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
May an unmarried father be the primary caregiver of a child born out of wedlock?
Many fathers would have been married to the mother. Others would have meaningfully partaken in the child’s life from birth. Therefore, there should generally be no difference between a child born from a marriage and a child born outside of marriage when it comes to fathers’ rights. To take the statement further, it is possible for a father of a child born out of wedlock to be the primary caregiver of the child, where the mother is only entitled to see the child at certain times and circumstances, or not at all.

How hard is it for a father to get custody or primary care over a child?

If the mother has primary care over a minor child, and the father has parental rights and responsibilities over such a child, he can obtain custody or primary care over the child. What the law looks at is what is in the child’s best interest should such a request be made. If it is indeed in the child’s best interest for the father to have custody over the minor child, then, under those circumstances, the court would make such an order.

How can a father get full custody of his kids?

If the mother has full custody over the minor child, a father would have to prove that such a situation is not in the minor child’s best interests. Therefore, he would have to make a case for the minor children to be in his primary care or that he should have full custody over the child.

Does the court make use of child care experts when deciding who should have custody?

For a court to determine whether or not to change the primary caregiver of the minor child, the court may require assistance from other parties. For example, a social worker, psychologist, or the office of the family advocate. This is not a legal requirement. However, a court would be guided by other experts especially so if the primary care of the minor child is to change.

Does the dad ever get custody?

Fathers often get custody over minor children. In other words, the child would primarily reside with the father. You could say he would have primary care over the minor child. This can be done by the parents agreeing to the father having custody or primary care. The other way is if the father approaches the court and the court determines that it is in the child’s best interest if the father has custody over the child or primary care.

What can be used against you in a custody battle?

The ultimate decider on the outcome of a child custody battle would be what is in the child’s best interest. Therefore, various factors have to be considered in determining what is in the child’s best interest. If a party can prove that a child is being unreasonably neglected while in the other party’s care, then that would be information that can be used against the other party. One such factor would be the abuse of alcohol, drugs, and abusing and neglecting the child.

How often do fathers get full custody?

Fathers often get full custody in child care matters. The law does not have a preference over whether or not a father should have custody or whether or not a mother should have custody over a minor child. What the law is concerned with, is what is best for the minor child. Many fathers can better care for a minor child than the mother. In such a case the court would grant full custody to the father.

Why do mothers have more rights than fathers?

In most cases, it is the mother who takes primary care over a child after birth. This is so as a child needs the care of a mother from birth. A mother would usually breastfeed a child and the father would be the one who takes on other responsibilities. This role of the mother as the primary caregiver for the child usually continues until the child can look after his or her self. This role of caring for the child works well if both the father and mother and children live in the same household.

What happens when parents separate in child custody matters?

When parents separate or do not live together, the issue arises as to where the child should live. In most cases, the parties would agree that the child should reside with the mother. When they do not agree on this issue the matter usually makes its way to the court. This is when the court will have to determine what is best for the minor child. If the court determines that the minor child would best be cared for by the mother, then the court would make such an order. However, if the court determines that even though the mother cared for the minor children since their birth and now unable to do so, the court would have to determine what is best for the child. If the father should care for the minor child, then, under those circumstances, the court would order that the primary care of the minor children be awarded to the father.

What do judges look for in child custody cases?

It would be difficult to give a general overview of what judges look for in child custody cases. This is so as each family is different and the facts surrounding a custody case would be different. However, the court is guided by the best interest of the child principle. The court would have to consider the age of the child, his or her needs, as well as the capability of either parent properly caring for the minor child. In many cases, the issues that the court will have to look at will be simple, but this is not always the case.

Why is it so hard for fathers to get custody?

Generally, fathers are not the primary caregivers of minor children. If a father was the primary caregiver of a minor child since his or her birth, and should a dispute arise sometime later, then under the circumstances, the father’s case would be much easier. However, because mothers are generally the primary caregivers of minor children and they looked after the children for quite some time and has gained a lot of experience and knowledge into how to care for a specific child, it would be easier for the mother, under those circumstances, to convince the court that the child would be best cared for should he or she remain in her care.

What makes a mother unfit in the eyes of the court?

A mother would be seen as being unfit if she neglects the child. For example, she abuses alcohol and does not feed the child or clean the child. Furthermore, she would not care for the child reasonably. The child would be allowed to miss school, or not do homework etc. Objectively speaking, and considering everything, the child is being neglected.

How can a woman lose custody of her child?

She can lose a child if she proves that she cannot take care of a child. The child is being neglected in her care and being abused in the process.

Why do mothers automatically receive custody?

As mothers give birth to a child and usually care for them from their birth, it is easy to demonstrate that they can care better for the child than the father. This is not always factually the case and a father can prove that he can care for the child much better than the mother and obtain custody over the child.

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Posted on 11 February 2025 by Telelaw

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