What are my rights in a contract dispute in South Africa – Advocate Muhammad Abduroaf

Posted on 11 February 2025 by Telelaw

What parents need to know should they wish to relocate from South Africa to the United Kingdom, Australia, United States, New Zealand or Canada with their minor child
We often receive queries and requests for advice and assistance on issues relating to relocation to another country with a minor child. Related topics relate to the issue of consent for the application for a Passport for a minor child. Sometimes the issue of changing the child’s surname comes into the picture. Of course, if parents are in agreement regarding the issue of relocation and a passport application, all should go well. You may want to see a lawyer to formalise the arrangement to avoid any issues whilst the parent and the child lives abroad. However, if there are potential complications or issues of consent not being forthcoming, then this article would be of assistance.

Why relocate, or emigrate from South Africa to the United Kingdom, Australia, United States, New Zealand, Canada, or elsewhere?

In no particular order, you would find someone relocating from South Africa to the following destinations: The United Kingdom, Australia, United States, New Zealand, Canada, Angola, Botswana, Chile, Zimbabwe, Germany, Netherlands, Swaziland, Israel, Portugal, Mozambique, Ireland, Malawi, Switzerland. Namibia and Greece. The reasons for the relocation vary. For some, it is for a better life, work, or to live with a new spouse or partner. For others, it may just be to explore the world. If there are children involved, then relocation won’t be that easy. Especially so if both parents live in South Africa, and the other wants to relocate with the minor child. In other words, parents who have parental responsibilities and rights need to be considered.

Parental Responsibilities and rights of parents (Applicable to South Africa)

Generally, both parents would have parental rights and responsibilities over a child. We say generally, as this would not always be the case. Mothers automatically have full parental responsibilities and rights over the child. If a parent has parental rights and responsibilities over a minor child; this could entail the right and responsibility to care for the child, have contact with the child and at the same time to act as guardian for the child. This article would deal with the issue of guardianship. If the parties were married the father will automatically have full parental rights and responsibilities over a minor child born from the marriage. If the parties were not married then in short, if the father was involved in the child’s life, he can acquire full parental rights and responsibilities over the minor child. Involvement entails having regular contact with the child and paying maintenance if he can afford so. If the mother refuses to let the father have contact, despite him making a concerted effort, or he cannot afford to pay maintenance, that would be considered.

The parental responsibilities and rights of guardianship (Applicable to South Africa)

Guardians of a minor child have specific rights and responsibilities. Under certain circumstances, both the minor child’s guardians must consent for certain matters. In relation to this article, both guardians must consent for the departure and removal of the minor child from South Africa, and the application for a passport for the minor child. The same would apply for a surname change.

What to do if a parent does not want to consent for the minor child relocating with a parent overseas, for example, Germany?

Before a parent should consider relocating, he or she must first ensure that the child’s best interests would be upheld should the relocation take place. Therefore, the parent should ensure that all the following are attended to:

A decent place to live overseas

For the other parent (the one remaining in South Africa), and the court to properly consider your wish to relocate with the minor child, it is important that there is a decent place for the minor child to live, albeit very modest. It would be difficult to convince the court to allow you to relocate with the child if you intend to find accommodation only once you arrive overseas. Often a parent would live with a relative or friend overseas. In other cases, the employer would arrange for accommodation.

Being able to maintain yourself and the child after you relocated

We doubt that any parent would agree that you may relocate with the child to a country, for example, Canada and you would have to look for work only when you arrive there. This scenario would most probably apply to someone who has dual citizenship or is already a citizen of the country he or she intends to relocate to. But in this case, he or she wants to take the minor child with him or her. Arrangements would have to be made in South Africa. Obviously, one would require a work permit to remain in the country for an extended period of time. If you are relocating on a spousal visa, things would be different. At the end of the day, the court would have to be satisfied that proper arrangements are in place prior to consenting to the relocation when the other parent refuses.

Schooling for the minor child

When the minor child relocates, he or she would have to be enrolled in a school, let’s say in New York. If the child is a toddler, this would not necessarily be an issue. However, if the child is at school-going age, then arrangements would have to be made in South Africa, prior to considering the relocation.

Other factors to consider

There are various further factors to consider when dealing with relocation with a minor child. Some of them relate to how contact would be exercised while the minor child is overseas. Basically, each case is different. However, all relevant factors need to be presented to the court.

When to approach the Court

Once you have done your homework and made the necessary arrangements, you should finally request the consent of the other parent to relocate. If consent is not provided, then you would need to approach the relevant Court. An application would have to be made, with a Notice of Motion, and Founding Affidavit. The documents would also be served on the other parent who would have an opportunity to give their version. At the end of the day, the court would decide what is best for the child and not the parents concerned. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws

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

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