Our Lawyer Legal Advice Questions and Answers

Posted on 11 February 2025 by Telelaw

Claiming Child Maintenance from Grandparents – What does the law say?
Many people are of the view that child maintenance may only be claimed by the parents of a child. They have that view even in the case where the parents cannot afford to maintain the child, but the grandparents can. At the outset, we state that the latter view is incorrect. If parents cannot afford to maintain a child, a claim for maintenance may be made against both the paternal and maternal grandparents of the child involved. This applies whether or not the child was born in or out of wedlock. Prior to 2004, or before the case of Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others 2004 (2) SA 56 (C), the law allowed parents to claim maintenance for their minor children from maternal and paternal grandparents, as long as the child was born within wedlock, or out of a marriage. If the child was born out of wedlock, then in such a case, the parent could only claim from the maternal grandparents. And not the paternal grandparents. This was clearly unfair and unconstitutional and something that many people would have issues with. In 2004, Adv. Muhammad Abduroaf had a client who wanted to claim maintenance from the maternal grandparents of her minor child, but the law did not allow for it. He and his client was not happy with the legal position and took the matter to the Western Cape High Court (the Provisional Division of the Cape). Adv. Abduroaf cited the Maintenance Office of Simon’s Town Maintenance Court and the paternal grandparents. The matter was argued, and the Court found in favour of Adv. Muhammad Abduroaf and his client. The case opened many doors for mothers in similar positions. Below we discuss the case. Due to Adv. Muhammad Abduroaf’s academic background in Constitutional law and willingness to fight for his client, he challenged the legal position.
Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others
2004 (2) SA 56 (C)
The well-known case of Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others 2004 (2) SA 56 (C) was a special one. Not because Adv. Abduroaf and his client were successful, but the effect of the case meant that children who could never claim maintenance from paternal grandparents if they were born out of wedlock could do so due to the case. The case also brought about widespread attention to the fact that a parent can claim maintenance from grandparents when the parents cannot afford to support the child on their own.
The following is extracted from the case of Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others 2004 (2) SA 56 (C) :
[6] The Motan decision is generally accepted as authority for the assertion that the paternal grandparents of an extramarital child do not owe a duty of support to the child. The interpretation of the common law in Motan and the resultant denial of a duty of support by the paternal grandparents of an E extra-marital child has, even prior to the present constitutional dispensation, been widely criticised by South African writers. Van den Heever Breach of Promise and Seduction in South African Law (1954) at 70 says the following: ‘It is submitted that the decision is so patently wrong that it should be reconsidered; for it is based on legislative considerations and methods, which are, moreover, unsound. It is contrary to public policy and humanity and should, if necessary, be rectified by the Legislature.’
This is what Adv. Abduroaf argued:
[7] Mr Abduroaf, who appears for the applicant, submitted that the common-law rule as interpreted in Motan, violates the extra-marital child’s constitutional rights to equality and dignity enshrined in ss 9 and 10 of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) and is contrary to the best interest of the child (see s 28(2) of the Constitution). He accordingly submits that the common-law rule is unreasonable and unjustifiable and should be declared unconstitutional and invalid.
Adv. Abduroaf further submitted:
[14] Mr Abduroaf submitted that the constitutional values embodied in ss 9, 10 and 28(2) of the Constitution, dictate that the common-law rule as enunciated in Motan, be developed by imposing a duty of support upon the paternal grandparents of an extra-marital child in the event of the natural parents of such child being unable to support the child. The said sections of the Constitution provide: ‘9 (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of ss (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in ss (3) is unfair unless it is established that the discrimination is fair. 10 Everyone has inherent dignity and the right to have their dignity respected and protected. . . . 28 (2) A child’s best interest is of paramount importance in every matter concerning the child.’
The Ruling in Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others 2004 (2) SA 56 (C)
At the end of the matter, the Court made the following ruling: [29] In the result I make the following order:
It is declared that the second and third respondents have a legal duty to support the extra-marital child of the applicant, J, born on 7 January 2003, to the same extent to which the fourth and fifth respondents are liable to maintain the said child.
The first respondent is directed to take the necessary steps for an enquiry to be held in terms of s 10 of the Maintenance Act 99 of 1998, with a view to enquiring into the provision of maintenance by the second and third respondents for the said extra-marital child of the applicant.
No order as to costs is made.
Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others 2004 (2) SA 56 (C) [caption id="attachment_10745" align="alignnone" width="300"] Adv. Muhammad Abduroaf[/caption]

Posted on 11 February 2025 by Telelaw

Looking for Family Legal Services in Newlands- Child Maintenance, Child Custody, Visitation Rights and Divorce
Here at our law officers, we understand the struggle of your anxious search for family legal services. Most often, you under the impression that you may not find the legal services you require within close proximity. Look no further.
Family Legal Advice Consultancy
We are a family legal consultancy that strive to cater for all your legal needs by offering legal advice and guidance in family law. If you happen to be residing in the Newlands area, then legal advice is still in your favor. Searching for a legal solution is tough enough and we are fully aware of this. With this in mind, we have made our legal advice and legal guidance easily accessible for your convenience. Our online system enables you to make an online appointment for a professional legal consultation within minutes, while in the comfort of your own home.

Price listings for Family Legal Services in Newlands

We have managed to compile a straightforward price list of some of our legal services in which we offer legal advice and legal guidance in. With that being said, we often have potential clients asking us for an overall view of what the service will cost. When it comes to child maintenance, child custody, contested/opposed divorces and so on; then an overview of the cost cannot be provided as this will be depend upon nature and circumstance of the legal matter. See our legal services page for an idea of what some of our legal services will cost.

Legal Advice in Newlands– Family law legal topics

For family law legal topics, we offer legal advice on a variety of family law topics, which include, but is not limited to:

And while our consultation does come at a fee of R800; we have made our free, expert legal advice articles on our website, easily accessible for the layperson. See the following free, expert legal advice articles which was carefully crafted by the legal expert himself. These articles can be found within the following categories:

Child Maintenance

Child Custody

Divorce and Property

So whether you’re residing in the Northern or Southern suburbs, we can assist you in your legal plight. Call our law offices on 021 424 3487, and have our friendly receptionist make an online appointment for you for a face to face, telephonic or Video Chat/Skype legal consultation.

Legal consultation – telephonic, face to face or via video chat / Skype legal advice for those residing in Newlands

Are you residing in Newlands and concerned that legal advice and legal guidance may be out of your way? This could never be more far off from the truth. Our professional legal consultancy have taken such circumstances into account and have managed to accommodate for those residing in the Newlands area. Our professional legal consultation can take place by virtue of video chat / Skype, email or telephonic for your convenience. We are currently based at Suit 702, 7^th Floor, The Pinnacle (on the corner of Burg and Strand Street). Do you require an Attorney to handle your legal matter? No problem. Our law offices have built a wealth of legal connections to ease your plight. After assessing your legal matter during the consultation, we can refer you to an Attorney if necessary. However, we have managed to sustain a convenient online operation which will unfold within the following ways:

Call our friendly receptionist and ask to have an appointment made for you online which will only take a minute or two.
You have the choice of deciding whether you would like a telephonic, email, video chat/Skype legal consultation.
Once you call our law offices on 021 424 3487, the receptionist will make an appointment online for you. Thereafter, you will receive an automated email which will contain all relevant details about the legal consultation. The date, time, nature of legal matter and payments methods will be highlighted within the email.
We urge potential clients to read their email well as well as the terms and conditions within the email.
Only once payment has been made, will the face to face legal consultation be confirmed.
Bear in mind that the date and time of the legal consultation is subject to change on either our part or the potential client’s part. Hence the potential client is free to change the date and time should they later find a more convenient date or time.

Call our law offices on 021 424 3487, and have our friendly receptionist make an online appointment for you for a face to face, telephonic or Video Chat/Skype legal consultation.

Free legal products if you live in Newlands

Our law offices does not offer pro bono legal services as we are a Family Legal Consultancy that aims at offering expert, efficient legal advice and assistance on child maintenance, divorce, child custody and so forth. We have however, as mentioned previously, made our free, expert legal advice accessible to the layperson on our website. The creators of this website have compiled a “Free Family Law Resources” section, which can be found on our home page. The family law resources are as follows:

You can now enjoy free, expert legal advice at the touch of a button. Call our law offices on 021 424 3487, and have our friendly receptionist make an online appointment for you for a face to face, telephonic or Video Chat/Skype legal consultation. Connect with us today!

Posted on 11 February 2025 by Telelaw

Relocation with my minor child to China, Shenzhen (Consent and Refusal) – Advocate Muhammad Abduroaf
The world is becoming a much smaller place, and technology plays a huge role. People are moving across the world for employment, love and happiness, something that was not the norm a few decades ago. There is no reason why you should remain in South Africa if you can find a better life for yourself and your family overseas. Moving overseas may provide you with the quality of life you want or the possibility of experiencing things you always wanted. The same applies to your child or children relocating with you.
Relocation of your minor child to Shenzhen, China
If you are single and do not have any minor children, then moving around the world would not be too complicated. All you need to do is ensure that you have the necessary travel documentation and travel ticket (and spending money), and off you go. However, if you want to travel with your minor children (for example, ages five or six) or relocate to another country, things may not be that simple. Firstly, if there is another parent, and he or she has parental responsibilities and rights, then his or her consent is required. For example, let us say you live in Zwelitsha or Durban, South Africa, and you want to relocate to Shenzhen, China, you would require the other parent’s consent to leave South Africa with your minor child. This can cause challenges, especially if the staying parent (in South Africa) does not agree to the relocation.
What about Passport Consent to travel or relocate to Shenzhen, China?
The same applies when it comes to your minor child applying for a South African passport to relocate to China, or any country. Both parents who have parental responsibilities and rights of guardianship will have to consent to the minor child’s passport application as well. In this regard, both parents have to be at the Department of Home Affairs (or the relevant bank that also assists with passport application) when making the Application with the minor child. This can be challenging if you have a disinterested parent who does not want to cooperate with the passport application. As you will see later, legal action would need to be taken.
What are the steps to follow when I want to relocate to Shenzhen, China with my minor child? There is another parent.
To simplify the process for relocation, the first step would be to receive the other parent’s consent in principle for the relocation and that he or she will co-operate in this regard. Once that has been resolved, the parent relocating would need to make the appointment for the minor child’s passport application as well as the application for the relevant VISA. Each country has different requirements; however, seeing that it is a relocation, you need to apply for the correct VISA. For that, you need the Passport. Once the visa and travel arrangements have been finalised, the parent remaining behind will sign a parental consent letter for the international travel. That letter can be found on the Department of Home Affairs website. Basically, the parent remaining behind would state that he or she gives consent for the minor child to leave the Republic of South Africa and travel and/or relocate to Shenzhen, China.
What can I do if the other parent does not want to consent to the minor child’s relocation to Shenzhen, China?
If the parent remaining in South Africa does not want to consent to the minor child’s passport application and/or his or her relocation to Shenzhen, China, then you would need to approach the Court. The Court, as upper guardian of the minor child, may order that the parent’s consent for the passport application and relocation be dispensed with. What this entails is submitting Court documents explaining why you want to relocate to Shenzhen, China. The other parent would also have an opportunity to give reasons why he or she objects. At the end of the process, the Court would determine what is in the minor child’s best interests. If it is in the minor child’s best interests to relocate to Shenzhen, China, the Court would make it possible despite the issue of consent or refusal.
What is the first step I should take if the other parent does not want to consent to the minor child’s passport application and/or relocation to Shenzhen, China?
If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Shenzhen, China – in that case, we suggest you approach an attorney or advocate (trust account) to assist you with the legal process. He or she would then contact the other parent explaining the reasons for the relocation and request the necessary consent. If the parent remaining in South Africa does still not agree to the passport application and/or to the relocation to Shenzhen, China, then the attorney or advocate will proceed to take the matter to court. The legal route can be expensive. However, it is necessary to make the relocation of the minor child possible. You may also attend to the legal process yourself.
Getting legal assistance or help with your relocation application to Shenzhen, China
If you require legal assistance or representation with relocating to Shenzhen, China due to the other parent not cooperating or providing consent, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.

Posted on 11 February 2025 by Telelaw

Related Post

Do you require a video legal advice consultation?