How to appeal to the Constitutional Court – Advocate Muhammad Abduroaf

A case usually commences from the Magistrate’s or High Court. If a party to the proceedings is unhappy with the outcome of the Magistrate’s Court decision, he or she will then proceed to appeal to the High Court. If, however, a case has been heard in the High Court, the Appeal would either be heard by a full-bench (usually two judges) in the High Court or the Supreme Court of Appeal would hear it. Once the Supreme Court of Appeal heard the matter and made a ruling, that would usually end it. However, a further appeal may be made to the Constitutional Court if the matter relates to constitutional rights. This Article deals with appeals to the Constitutional Court of South Africa, which has its seat in Braamfontein. Please note that although this article does not deal with it, it is also possible to make a direct application to the Constitutional Court, asking it to sit as a court of first and last instance because of the urgency of the matter or when allowed in terms of the Constitution as can be seen below. According to the website of the Constitutional Court, the contact details of the Constitutional Court is: Court Offices Director of the Constitutional Court: Tel: +27 11 359-7459 Email: [email protected] General office: of the Constitutional Court (Registrar ): Tel: +27 11 359-7468 / 7460 / 7465 / 7592 Email: [email protected]

What is a Court Appeal?

An appeal is the legal process by which a party requests a formal change to an official decision. This process usually takes place after a party is dissatisfied with a ruling made by a lower court. Appeals are made to a higher court with the intention of reviewing and potentially overturning the lower court’s decision. The purpose of an appeal is to ensure that justice is served by providing a mechanism for correcting errors made by lower courts, thereby upholding the integrity of the judicial process. Therefore, if a party is not happy with the decision of the High Court or the Supreme Court of Appeal regarding a constitutional matter, he or she would then appeal to the Constitutional Court.

The South African Court System

Section 166 of our Constitution (Act 108 or 1996) deals with our Judicial System. It states the following: Judicial system

The courts are—

(a) the Constitutional Court; (b) the Supreme Court of Appeal; (c) the High Court of South Africa, and any high court of appeal that may be established by an Act of Parliament to hear appeals from any court of a status similar to the High Court of South Africa; (d) the Magistrates’ Courts; and (e) any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the High Court of South Africa or the Magistrates’ Courts. You will note that the Constitution places the Constitutional Court on top of the list, followed by the Supreme Court of Appeal, the High Court and the Magistrate’s Court. Seeing that this article deals with appeals to the Constitutional Court, for the sake of completeness, let us deal with the composition of the Constitutional Court. Section 167 of our Constitution states: Constitutional Court

(1) The Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges.

(2) A matter before the Constitutional Court must be heard by at least eight judges. (3) The Constitutional Court— (a) is the highest court of the Republic; and (b) may decide— (i) constitutional matters; and (ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court, and (c) makes the final decision whether a matter is within its jurisdiction. (4) Only the Constitutional Court may— (a) decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state; (b) decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in section 79 or 121; (c) decide applications envisaged in section 80 or 122; (d) decide on the constitutionality of any amendment to the Constitution; (e) decide that Parliament or the President has failed to fulfil a constitutional obligation; or (f) certify a provincial constitution in terms of section 144. (5) The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court of South Africa, or a court of similar status, before that order has any force. (6) National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court— (a) to bring a matter directly to the Constitutional Court; or (b) to appeal directly to the Constitutional Court from any other court. (7) A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution. We don’t want to go into too much detail, but it is clear that the Constitutional Court is a specialist court dealing with constitutional matters, law important to the public, and issues regarding the government, as outlined above. Any decision that invalidates provincial or parliamentary legislation or any conduct of the President must be confirmed by the Constitutional Court before it has any effect.

How do you appeal to the Constitutional Court?

If your matter relates to an issue that falls within the jurisdiction of the Constitutional Court, you may appeal to it. If the Constitutional Court agrees with you, it will make a ruling in your favour. The first step would be to make the application to the Constitutional Court. Please note that the Constitutional Court has the discretion whether or not to hear a matter. An exception is where an Act of Parliament has already been declared invalid, but another Court, and the Constitutional Court is required to confirm the finding.

Rules of the Constitutional Court

The Constitutional Court has its own rules. One should consult these rules when litigating in the Constitutional Court. Relevant to this article is Rule 19, which deals with appeal process in the Constitutional Court. It states the following: 19. Appeals (1) The procedure set out in this rule shall be followed in an application for leave to appeal to the Court where a decision on a constitutional matter, other than an order of constitutional invalidity under section 172(2)(a) of the Constitution, has been given by any court including the Supreme Court of Appeal, and irrespective of whether the President has refused leave or special leave to appeal. (2) A litigant who is aggrieved by the decision of a court and who wishes to appeal against it directly to the Court on a constitutional matter shall, within 15 days of the order against which the appeal is sought to be brought and after giving notice to the other party or parties concerned, lodge with the Registrar an application for leave to appeal: Provided that where the President has refused leave to appeal the period prescribed in this rule shall run from the date of the order refusing leave. (3) An application referred to in subrule (2) shall be signed by the applicant or his or her legal representative and shall contain— (a) the decision against which the appeal is brought and the grounds upon which such decision is disputed; (b) a statement setting out clearly and succinctly the constitutional matter raised in the decision; and any other issues including issues that are alleged to be connected with a decision on the constitutional matter; (c) such supplementary information or argument as the applicant considers necessary to bring to the attention of the Court; and (d) a statement indicating whether the applicant has applied or intends to apply for leave or special leave to appeal to any other court, and if so— (i) which court; (ii) whether such application is conditional upon the application to the Court being refused; and (iii) the outcome of such application, if known at the time of the application to the Court. (4) (a) Within 10 days from the date upon which an application referred to in subrule (2) is lodged, the respondent or respondents may respond thereto in writing, indicating whether or not the application for leave to appeal is being opposed, and if so the grounds for such opposition. (b) The response shall be signed by the respondent or respondents or his or her or their legal representative. (5) (a) A respondent or respondents wishing to lodge a cross-appeal to the Court on a constitutional matter shall, within 10 days from the date upon which an application in subrule (2) is lodged, lodge with the Registrar an application for leave to cross-appeal. (b) The provisions of these rules with regard to appeals shall apply, with necessary modifications, to cross-appeals. (6) (a) The Court shall decide whether or not to grant the appellant leave to appeal. (b) Applications for leave to appeal may be dealt with summarily, without receiving oral or written argument other than that contained in the application itself. (c) The Court may order that the application for leave to appeal be set down for argument and direct that the written argument of the parties deal not only with the question whether the application for leave to appeal should be granted, but also with the merits of the dispute. The provisions of rule 20 shall, with necessary modifications, apply to the procedure to be followed in such procedures.

Procedure on appeal

Section 20 of the Constitutional Court’s Rules deals with the procedure on appeal. It is states:

Procedure on appeal

(1) If leave to appeal is given in terms of rule 19, the appellant shall note and prosecute the appeal as follows— (a) The appellant shall prepare and lodge the appeal record with the Registrar within such time as may be fixed by the Chief Justice in directions. (b) Subject to the provisions of subrule (1)(c) below, the appeal record shall consist of the judgment of the court from which the appeal is noted, together with all the documentation lodged by the parties in that court and all the evidence which may have been led in the proceedings and which may be relevant to the issues that are to be determined. (c) (i) The parties shall endeavour to reach agreement on what should be included in the record and, in the absence of such agreement, the appellant shall apply to the Chief Justice for directions to be given in regard to the compilation of the record. (ii) Such application shall be made in writing and shall set out the nature of the dispute between the parties in regard to the compilation of the record and the reasons for the appellant’s contentions. (iii) The respondent may respond to the application within 10 days of being served with the application and shall set out the reasons for the respondent’s contentions. (iv) The Chief Justice may assign the application to one or more judges, who may deal with the matter on the papers or require the parties to appear before him or her or them on a specified day and at a specified time to debate the compilation of the record. (v) The judge or judges concerned shall give directions in regard to the compilation of the record, the time within which the record is to be lodged with the Registrar and any other matters which may be deemed by him or her or them to be necessary for the purpose of enabling the Court to deal with the appeal, which directions may include that the matter be referred back to the court a quo for the hearing of additional evidence specified in the directions, or that additional evidence be put before the Court by way of affidavit or otherwise for the purpose of the appeal. (2) (a) One of the copies of the record lodged with the Registrar shall be certified as correct by the Registrar of the court appealed from. (b) Copies of the record shall be clearly typed on stout A4-size paper, double-spaced in black record ink, on one side of the paper only. (c) Legible documents that were typed or printed in their original form such as cheques and the like shall not be retyped and clear photocopies on A4-size paper shall be provided instead. (d) The pages shall be numbered clearly and consecutively and every tenth line on each page shall be numbered and the pagination used in the court a quo shall be retained where possible. (e) Bulky records shall be divided into separate conveniently-sized volumes of approximately 100 pages each. The record shall be securely bound in book format to withstand constant use and shall be so bound that upon being used will lie open without manual or other restraint. (f) All records shall be securely bound in suitable covers disclosing the case number, names of the parties, the volume number and the numbers of the pages contained in that volume, the total number of volumes, the court a quo and the names of the attorneys of the parties. (g) The binding required by this rule shall be sufficiently secure to ensure the stability of the papers contained within the volume; and where the record consists of more than one volume, the number of each volume and the number of the pages contained in a volume shall appear on the upper third of the spine of the volume. (h) Where documents are lodged with the Registrar, and such documents are recorded on a computer disk, the party lodging the document shall where possible also make available to the Registrar a disk containing the file in which the document is contained, or transmit an electronic copy of the document concerned by e-mail in a format determined by the Registrar which is compatible with software that is used by the Court at the time of lodgement, to the Registrar at: [email protected]: Provided that the transmission of such copy shall not relieve the party concerned from the obligation under rule 1(3) to lodge the prescribed number of hard copies of the documents so lodged. (i) If a disk is made available to the Registrar the file will be copied and the disk will be returned to the party concerned. Where a disk or an electronic copy of a document other than a record is provided, the party need lodge only 13 copies of the document concerned with the Registrar. (3) If a record has been lodged in accordance with the provisions of paragraphs (b) and (c) of subrule (1), the Registrar shall cause a notice to be given to the parties to the appeal requiring— (a) the appellant to lodge with the Registrar written argument in support of the appeal within a period determined by the Chief Justice and specified in such notice; and (b) the respondent to lodge with the Registrar written argument in reply to the appellant’s argument by a specified date determined by the Chief Justice, which shall be subsequent to the date on which the appellant’s argument was served on the respondent. (4) The appellant may lodge with the Registrar written argument in answer to the respondent’s argument within 10 days from the date on which the respondent’s argument was served on the appellant. (5) The Chief Justice may decide whether the appeal shall be dealt with on the basis of written arguments only. (6) Subject to the provisions of subrule (5), the Chief Justice shall determine the date on which oral argument will be heard, and the Registrar shall within five days of such determination notify all parties to the appeal of the date of the hearing by registered post or facsimile.

What are the Steps:

Within 15 days of the Order you are appealing against, lodged you Application for leave to appeal [Rule 19(2)]
Within 10 days, the Respondent is to file its Notice to Oppose the appeal and the grounds for the opposition [Rule 19(4)(a)]
The Constitutional Court would then decide whether or not to grant the leave to Appeal [Rule 19(6)(a)]
If leave to appeal is granted, the appellant shall prepare and lodge the appeal record with the Registrar [Rule 20(1)(a)]
The Chief Justice may decide whether the appeal shall be dealt with on the basis of written arguments only [Rule 20(5)]
The matter would be argued on the date provided by the Constitutional Court.

Posted on 11 February 2025 by Telelaw

How to appeal to the Constitutional Court – Advocate Muhammad Abduroaf

Please note that although this article does not deal with it, it is also possible to make a direct application to the Constitutional Court, asking it to sit as a court of first and last instance because of the urgency of the matter or when allowed in terms of the Constitution as can be seen below.

According to the website of the Constitutional Court, the contact details of the Constitutional Court is:

Court Offices

Director of the Constitutional Court:
Tel: +27 11 359-7459
Email: [email protected]

General office: of the Constitutional Court (Registrar ):

Tel: +27 11 359-7468 / 7460 / 7465 / 7592
Email: [email protected]

What is a Court Appeal?

The South African Court System

Section 166 of our Constitution (Act 108 or 1996) deals with our Judicial System. It states the following:

Judicial system

The courts are—

(a) the Constitutional Court;

(b) the Supreme Court of Appeal;

(c) the High Court of South Africa, and any high court of appeal that may be

established by an Act of Parliament to hear appeals from any court of a status

similar to the High Court of South Africa;

(d) the Magistrates’ Courts; and

(e) any other court established or recognised in terms of an Act of Parliament,

including any court of a status similar to either the High Court of South Africa

or the Magistrates’ Courts.

You will note that the Constitution places the Constitutional Court on top of the list, followed by the Supreme Court of Appeal, the High Court and the Magistrate’s Court.

Seeing that this article deals with appeals to the Constitutional Court, for the sake of completeness, let us deal with the composition of the Constitutional Court. Section 167 of our Constitution states:

Constitutional Court

(1) The Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges.

(2) A matter before the Constitutional Court must be heard by at least eight judges.

(3) The Constitutional Court—

(a) is the highest court of the Republic; and

(b) may decide—

(i) constitutional matters; and

(ii) any other matter, if the Constitutional Court grants leave to appeal on

the grounds that the matter raises an arguable point of law of general

public importance which ought to be considered by that Court, and

(c) makes the final decision whether a matter is within its jurisdiction.

(4) Only the Constitutional Court may—

(a) decide disputes between organs of state in the national or provincial

sphere concerning the constitutional status, powers or functions of any of

those organs of state;

(b) decide on the constitutionality of any parliamentary or provincial Bill, but may

do so only in the circumstances anticipated in section 79 or 121;

(c) decide applications envisaged in section 80 or 122;

(d) decide on the constitutionality of any amendment to the Constitution;

(e) decide that Parliament or the President has failed to fulfil a constitutional

obligation; or

(f) certify a provincial constitution in terms of section 144.

(5) The Constitutional Court makes the final decision whether an Act of Parliament, a

provincial Act or conduct of the President is constitutional, and must confirm any

order of invalidity made by the Supreme Court of Appeal, the High Court of South

Africa, or a court of similar status, before that order has any force.

(6) National legislation or the rules of the Constitutional Court must allow a person,

when it is in the interests of justice and with leave of the Constitutional Court—

(a) to bring a matter directly to the Constitutional Court; or

(b) to appeal directly to the Constitutional Court from any other court.

(7) A constitutional matter includes any issue involving the interpretation, protection or

enforcement of the Constitution.

We don’t want to go into too much detail, but it is clear that the Constitutional Court is a specialist court dealing with constitutional matters, law important to the public, and issues regarding the government, as outlined above.

Any decision that invalidates provincial or parliamentary legislation or any conduct of the President must be confirmed by the Constitutional Court before it has any effect.

How do you appeal to the Constitutional Court?

Rules of the Constitutional Court

19. Appeals

(1) The procedure set out in this rule shall be followed in an application for leave to appeal to the Court where a decision on a constitutional matter, other than an order of constitutional invalidity under section 172(2)(a) of the Constitution, has been given by any court including the Supreme Court of Appeal, and irrespective of whether the President has refused leave or special leave to appeal.

(2) A litigant who is aggrieved by the decision of a court and who wishes to appeal against it directly to the Court on a constitutional matter shall, within 15 days of the order against which the appeal is sought to be brought and after giving notice to the other party or parties concerned, lodge with the Registrar an application for leave to appeal: Provided that where the President has refused leave to appeal the period prescribed in this rule shall run from the date of the order refusing leave.

(3) An application referred to in subrule (2) shall be signed by the applicant or his or her legal representative and shall contain—

(a) the decision against which the appeal is brought and the grounds upon which such decision is disputed;

(b) a statement setting out clearly and succinctly the constitutional matter raised in the decision; and any other issues including issues that are alleged to be connected with a decision on the constitutional matter;

(c) such supplementary information or argument as the applicant considers necessary to bring to the attention of the Court; and

(d) a statement indicating whether the applicant has applied or intends to apply for leave or special leave to appeal to any other court, and if so—

(i) which court;

(ii) whether such application is conditional upon the application to the Court being refused; and

(iii) the outcome of such application, if known at the time of the application to the Court.

(4)

(a) Within 10 days from the date upon which an application referred to in subrule (2) is lodged, the respondent or respondents may respond thereto in writing, indicating whether or not the application for leave to appeal is being opposed, and if so the grounds for such opposition.

(b) The response shall be signed by the respondent or respondents or his or her or their legal representative.

(5)

(a) A respondent or respondents wishing to lodge a cross-appeal to the Court on a constitutional matter shall, within 10 days from the date upon which an application in subrule (2) is lodged, lodge with the Registrar an application for leave to cross-appeal.

(b) The provisions of these rules with regard to appeals shall apply, with necessary modifications, to cross-appeals.

(6)

(a) The Court shall decide whether or not to grant the appellant leave to appeal.

(b) Applications for leave to appeal may be dealt with summarily, without receiving oral or written argument other than that contained in the application itself.

(c) The Court may order that the application for leave to appeal be set down for argument and direct that the written argument of the parties deal not only with the question whether the application for leave to appeal should be granted, but also with the merits of the dispute. The provisions of rule 20 shall, with necessary modifications, apply to the procedure to be followed in such procedures.

Procedure on appeal

Section 20 of the Constitutional Court’s Rules deals with the procedure on appeal. It is states:

Procedure on appeal

(1) If leave to appeal is given in terms of rule 19, the appellant shall note and prosecute the appeal as follows—

(a) The appellant shall prepare and lodge the appeal record with the Registrar within such time as may be fixed by the Chief Justice in directions.

(b) Subject to the provisions of subrule (1)(c) below, the appeal record shall consist of the judgment of the court from which the appeal is noted, together with all the documentation lodged by the parties in that court and all the evidence which may have been led in the proceedings and which may be relevant to the issues that are to be determined.

(c)

(i) The parties shall endeavour to reach agreement on what should be included in the record and, in the absence of such agreement, the appellant shall apply to the Chief Justice for directions to be given in regard to the compilation of the record.

(ii) Such application shall be made in writing and shall set out the nature of the dispute between the parties in regard to the compilation of the record and the reasons for the appellant’s contentions.

(iii) The respondent may respond to the application within 10 days of being served with the application and shall set out the reasons for the respondent’s contentions.

(iv) The Chief Justice may assign the application to one or more judges, who may deal with the matter on the papers or require the parties to appear before him or her or them on a specified day and at a specified time to debate the compilation of the record.

(v) The judge or judges concerned shall give directions in regard to the compilation of the record, the time within which the record is to be lodged with the Registrar and any other matters which may be deemed by him or her or them to be necessary for the purpose of enabling the Court to deal with the appeal, which directions may include that the matter be referred back to the court a quo for the hearing of additional evidence specified in the directions, or that additional evidence be put before the Court by way of affidavit or otherwise for the purpose of the appeal.

(2)

(a) One of the copies of the record lodged with the Registrar shall be certified as correct by the Registrar of the court appealed from.

(b) Copies of the record shall be clearly typed on stout A4-size paper, double-spaced in black record ink, on one side of the paper only.

(c) Legible documents that were typed or printed in their original form such as cheques and the like shall not be retyped and clear photocopies on A4-size paper shall be provided instead.

(d) The pages shall be numbered clearly and consecutively and every tenth line on each page shall be numbered and the pagination used in the court a quo shall be retained where possible.

(e) Bulky records shall be divided into separate conveniently-sized volumes of approximately 100 pages each. The record shall be securely bound in book format to withstand constant use and shall be so bound that upon being used will lie open without manual or other restraint.

(f) All records shall be securely bound in suitable covers disclosing the case number, names of the parties, the volume number and the numbers of the pages contained in that volume, the total number of volumes, the court a quo and the names of the attorneys of the parties.

(g) The binding required by this rule shall be sufficiently secure to ensure the stability of the papers contained within the volume; and where the record consists of more than one volume, the number of each volume and the number of the pages contained in a volume shall appear on the upper third of the spine of the volume.

(h) Where documents are lodged with the Registrar, and such documents are recorded on a computer disk, the party lodging the document shall where possible also make available to the Registrar a disk containing the file in which the document is contained, or transmit an electronic copy of the document concerned by e-mail in a format determined by the Registrar which is compatible with software that is used by the Court at the time of lodgement, to the Registrar at: [email protected]: Provided that the transmission of such copy shall not relieve the party concerned from the obligation under rule 1(3) to lodge the prescribed number of hard copies of the documents so lodged.

(i) If a disk is made available to the Registrar the file will be copied and the disk will be returned to the party concerned. Where a disk or an electronic copy of a document other than a record is provided, the party need lodge only 13 copies of the document concerned with the Registrar.

(3) If a record has been lodged in accordance with the provisions of paragraphs (b) and (c) of subrule (1), the Registrar shall cause a notice to be given to the parties to the appeal requiring—

(a) the appellant to lodge with the Registrar written argument in support of the appeal within a period determined by the Chief Justice and specified in such notice; and

(b) the respondent to lodge with the Registrar written argument in reply to the appellant’s argument by a specified date determined by the Chief Justice, which shall be subsequent to the date on which the appellant’s argument was served on the respondent.

(4) The appellant may lodge with the Registrar written argument in answer to the respondent’s argument within 10 days from the date on which the respondent’s argument was served on the appellant.

(5) The Chief Justice may decide whether the appeal shall be dealt with on the basis of written arguments only.

(6) Subject to the provisions of subrule (5), the Chief Justice shall determine the date on which oral argument will be heard, and the Registrar shall within five days of such determination notify all parties to the appeal of the date of the hearing by registered post or facsimile.

What are the Steps:

Within 15 days of the Order you are appealing against, lodged you Application for leave to appeal [Rule 19(2)]
Within 10 days, the Respondent is to file its Notice to Oppose the appeal and the grounds for the opposition [Rule 19(4)(a)]
The Constitutional Court would then decide whether or not to grant the leave to Appeal [Rule 19(6)(a)]
If leave to appeal is granted, the appellant shall prepare and lodge the appeal record with the Registrar [Rule 20(1)(a)]
The Chief Justice may decide whether the appeal shall be dealt with on the basis of written arguments only [Rule 20(5)]
The matter would be argued on the date provided by the Constitutional Court.

Child Maintenance / Support Questions and Answers

Our Lawyer (Pty) Ltd introduced this Child Maintenance / Support Questions and Answers page for you to post questions you may have on the topic. For example, if you want to know how much child maintenance to claim, pose a question with some background facts. At the same time, should you be able to assist others who posted questions below, requiring some advice on Child Maintenance / Support, please proceed and reply to their comments. In that manner, we would all be able to assist each other and increase our online knowledge base. Therefore, although we a are legal consultancy, specialising in family law, you may have problems or experiences that we have not encountered. Let us share in our knowledge of Child Maintenance / Support.

Want to know more about Rule 43 Applications in the High Court and Rule 58 Applications in the Magistrates' Court? Click here.

Other family law resources on this website

There are various other family law resources on this website that you may find useful. For example, there is a downloadable child maintenance calculator. The resources may assist you with whatever questions you have, or information you require on Child Maintenance / Support. Therefore, after posting your question, or any time after, have a look at the useful resources and information on our website. Some of these resources are listed hereafter.

Articles and Q&A

There are a range of legal articles on this website dealing with various family law issues. Some of these articles are straight forward, outlining the legal position on a family law related topic. For example, how to apply for child maintenance, or how to get divorced. Other articles are written in the form of answering a specific legal question. For example, do I pay maintenance if I am unemployed, or what do I do if I want to leave the country with my child, and the other parent does not want to provide consent? Those articles are in blog format. This means that you are welcome to comment or pose questions to increase our knowledge base. The clear idea behind our website is that we want to make family law legal information more accessible and available to the public.

Downloadable resources

We created some downloadable resources for free on this website. They are: 1 Free Basic Will Tool Kit 2. Free Shariah Will Template 3. Free Divorce Starter Tool Kit 4. Free Child Maintenance Calculator 5. Free DIY Urgent Child Contact Toolkit Feel free to download these useful resources. Click on the links above, and complete the online purchase process. The purchase price is R 0. Thereafter, a downloadable link would be emailed to you. Once you received the email, download it as soon as possible as the link would expire after two months. We hope that we assisted you with any queries you had on Child Maintenance / Support. If not, feel free to arrange a consultation with us.

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Posted on 11 February 2025 by Telelaw

I am a victim of Domestic Violence – Please provide me with questions and answers for general issues in domestic violence matters.
What is considered domestic violence in South Africa?
Domestic violence in South Africa includes physical, emotional, sexual, or economic abuse within an intimate relationship or household.
Are men also protected under South African domestic violence laws?
Yes, South African laws protect both men and women from domestic violence. Any person, regardless of gender, can be a victim or perpetrator.
How can one obtain a protection order against domestic violence in South Africa?
To obtain a protection order, a victim can apply at the Magistrate’s Court, and if in immediate danger, they can approach the police.
What are the consequences of violating a protection order in South Africa?
Violating a protection order is a criminal offence, and penalties may include fines or imprisonment.
Can domestic violence victims get legal assistance in South Africa?
Yes, victims can seek legal assistance through organizations like Legal Aid South Africa or private attorneys specializing in domestic violence cases.
Are there support services available for domestic violence victims in South Africa?
Yes, various organizations provide support services, including shelters, counseling, and legal advice for domestic violence victims.
What role can the police play in domestic violence cases in South Africa?
The police can intervene, arrest the perpetrator if necessary, and assist and/or advise victims in obtaining protection orders.
Is it possible to report domestic violence anonymously in South Africa?
While anonymous reporting might be challenging, victims can request confidentiality, and their information can be protected during legal proceedings.
What rights do children have in cases of domestic violence in South Africa?
Children have the right to be protected from domestic violence, and authorities may intervene to ensure their safety.
Can a victim drop charges against an alleged perpetrator of domestic violence in South Africa?
In criminal cases, only the state can drop charges. However, in civil cases like obtaining a protection order, the victim has control over the process.
Are there cultural considerations in addressing domestic violence in South Africa?
Yes, cultural sensitivities are considered, but domestic violence is universally condemned, and legal measures apply regardless of cultural background.
What is the role of social workers in domestic violence cases in South Africa?
Social workers can provide counseling, support, and assistance in finding resources for victims of domestic violence.
Can a victim of domestic violence in South Africa claim compensation?
Yes, victims may seek compensation through civil claims against the perpetrator for damages suffered due to domestic violence.
Are employers obligated to support employees experiencing domestic violence in South Africa?
Employers are encouraged to support employees facing domestic violence and can provide assistance such as counseling or time off for legal proceedings.
Can technology be used as evidence in domestic violence cases in South Africa?
Yes, text messages, emails, or other electronic communications can be used as evidence in domestic violence cases.
What steps can schools take to address domestic violence affecting students in South Africa?
Schools can create awareness, provide counseling services, and collaborate with relevant authorities to address domestic violence affecting students.
How does the South African legal system handle false accusations of domestic violence?
False accusations can be taken seriously, and the legal system aims to discern the truth through investigations to prevent misuse of protection orders.
Is domestic violence education mandatory in South African schools?
While not mandatory, initiatives exist to incorporate awareness programs about domestic violence into school curricula.
Can immigration status affect a victim’s ability to report domestic violence in South Africa?
No, immigration status should not be a barrier to reporting domestic violence, and victims are encouraged to seek help regardless of their legal status.
What community resources are available to combat domestic violence in South Africa?
Community resources include NGOs, helplines, and community centers that provide support, counseling, and education on domestic violence.

Posted on 11 February 2025 by Telelaw

International Family Law matters, applicable to South Africa
Divorces are not only limited to people living in the same country. Often, you will find that one spouse lives in South Africa and the other in a different country. They want to get divorced but do not know how to go about it. The question now is, which country and which court should divorce them? We regularly receive these types of queries from people living in the Middle East and the United Kingdom. The same problem arises in the case of parents living in different countries, but there are complications regarding contact and access to their minor children. Let’s say, one parent, lives in Cape Town and the other in Taiwan. How does the parent living in Taiwan enforce his contact rights to his child in South Africa? Does he or she approach the court in Taiwan? Or should he or she approach the Court in South Africa? And Lastly, there is an issue regarding child maintenance. What happens in the case where one parent lives in Cape Town and the other in New York? How does child maintenance work? Can the parent living in Cape Town with the children obtain a maintenance order against a parent in New York? This article will deal with the above three topics. Read on to learn more.

South Africans living abroad

South African expatriates are found all over the world. These include the following places:

The United Kingdom
United States of America
Canada
Chile
Taiwan
New Zealand
Japan
India
Brazil
China

Whatever the destination and/or location is, this article would be a useful read. Especially so if you find yourself in an international family law dispute.

We regularly receive enquiries and requests for legal advice and/or assistance from people who have a legal connection to South Africa, but do not live here. This may include an intended divorce, where one of the spouses reside in South Africa, or a child contact issue, where a parent would like to have contact with his or her child living here.

With the advances in technology, providing advice and assistance to clients abroad becomes very easy, and convenient. There is Skype, WhatsApp Video, FaceTime, to mention a few that can bridge the communication gap. But for now, let us deal with the legal issues involved and fly away with divorces.

I live in the United Kingdom, and want to divorce my spouse living in Cape Town

Many people believe that because they got married in South Africa, any court in South Africa can divorce them. Or because they lived in Cape Town, that the Western Cape High Court in Cape Town can divorce them, even though they live in London at present. That is not the case. You will see why not. The issue is that of the Jurisdictional authority of the relevant Court.

Jurisdiction of the Divorce Courts in South Africa

Section 2(1) of the Divorce Act, states the following when it comes to the Court’s Jurisdiction: “A court shall have jurisdiction in a divorce action if the parties are or either of the parties is- (a) domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or (b) ordinarily resident in the area of jurisdiction of the court on the said date and have or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.”

So, as you can see, you need to have fulfilled one of those latter requirements. Therefore, if you and your spouse moved to England, to settle there, you may not get divorced in Cape Town if the marriage broke down. This is so even though your marriage took place in Cape Town and you own property there. If, however, the husband lives in England, and the wife in Cape Town and she is resident there, then the divorce is possible in Cape Town. Now let us move on to other family law related matters. We will tackle the issue of child contact next.

I live in the United States of America, and I am not allowed to have contact with my child living in Cape Town, South Africa

It often happens that parents would have a relationship and bring a child into this world. The relationship deteriorates, and one parent then moves and relocates to another country. In our experience, this is usually work related. Everything would seem to go well until the relocating parent has problems exercising contact with his or her child in South Africa. The challenge for the parent that relocated is the distance. He or she is not able to pop into the child’s home should they not answer the phone or visit the children at school should he or she not be able to get hold of them. Luckily, in this case, because the children are living in a specific province, for example, the Western Cape, the parent who relocated can have his or her attorney approach the Court locally to enforce his or her rights. So, for example, let’s say in this case, the father relocated, he can enlist the services of an attorney in Cape Town to make an Urgent Application to the Western Cape High Court for an Order for immediate telephonic, or video contact. An Application in the Children’s Court would be problematic as he would have to be present at the Court. This, of course, would not be an issue if he is willing to fly down for each of the Court hearings. The Court would then hear the matter and decide what is best for the children involved. If it would be best for them to have telephonic and/or video contact with the father on a regular basis; the court would then make the appropriate order. The party can also consider incorporating a clause which would entail the minor children traveling to him overseas.

How to claim child maintenance for my children if the other parent lives in New York

International child maintenance is always a complicated issue. This is so as the parent who is supposed to pay maintenance is out of the country. For this very reason, a parent living in South Africa will have to make use of international law.

The parent will approach the maintenance court in South Africa who in turn will approach the court in the country where the parent who is supposed to pay maintenance lives. We will not go into detail in this article on how exactly the process works. However, it basically entails a court making an order in Cape Town and then later having it registered in the foreign country. The applicable legislation is the Reciprocal Enforcement of Maintenance Orders Act 80 of 1963. The reverse also applies. Let’s say a parent lives in California and requires maintenance from a parent in South Africa. Then the same process would be applied. The parent would make an application for a maintenance order in California, and then have it registered in Cape Town. The Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 would also apply to South Africa. If this is applicable to you, we advise that you approach your local maintenance court as soon as possible.

Posted on 11 February 2025 by Telelaw