What is An Advocate in South Africa?

An advocate in South Africa is a legal professional who specialises in courtroom advocacy and giving legal advice. They are usually trained and hold experience in representing clients in court (High Court and Magistrates Court), drafting legal documents (Affidavit and Pleadings) and providing legal advice on various legal matters. There are two types of Advocates in South Africa. One is a referral advocate, and the other is a Trust Account Advocate. A referral advocate may only take on work referred to it by an attorney. There are certain exceptions. A Trust Account Advocate may take on work directly from members of the Public. In some countries, such as the United Kingdom, barristers (advocates) are distinct from solicitors (attorneys), who are legal professionals but tend to focus more on advising clients outside of court and handling legal transactions.

Why can Trust Account Advocates take on work directly from members of the Public?

All Trust Account Advocates have Trust Banking Accounts and Fidelity Fund Certificates. The Client would then pay money into the Trust Account Advocates banking account, which funds are protected. Therefore, should a Trust Account Advocate misappropriate the capital of a client who paid money into the Trust Banking Account, the Client can claim from the Fidelity Fund.

What is child custody law?

Child custody refers to parents’ legal rights and responsibilities (Parental Responsibilities and Rights) over their children after a separation or divorce. This includes having access or contact with the child and making decisions about their child’s upbringing, such as their education, healthcare, and religious upbringing. A Trust Account Advocate may represent a client directly in a child custody matter.

What is child maintenance law?

Child maintenance law, also known as child support law, refers to the legal framework that governs the financial support a non-custodial parent must provide for their child. Child maintenance laws help ensure that both parents are financially responsible for their child’s upbringing and well-being, even after a separation or divorce. The law provides guidelines for determining how much child support should be paid, how often it should be paid, and how it is collected. In South Africa, we have the Maintenance Act and the Maintenance Courts. A Trust Account Advocate may represent a client directly in a child maintenance matter.

What is divorce law?

Divorce law refers to the legal rules and regulations that govern terminating a marriage. This includes the grounds for divorce, division of property, spousal support (alimony), child custody, and visitation rights. Divorce laws vary from country to country and even from state to state within a country. These laws ensure that the divorce process is fair and equitable for both parties involved. They provide a legal framework for resolving disputes and ensuring that the rights and interests of all parties, including any children involved, are protected. A Trust Account Advocate may represent a client directly in a divorce matter.

What does child relocation law mean and entail?

Child relocation law refers to the legal rules and regulations governing children’s movement from one geographical location to another. This can either relate to provincial or international relocation. This law concerns the child’s well-being and ensures that relocation is in their best interest. It entails a range of factors that need to be considered, such as the child’s relationship with each parent, the distance of the proposed move, and the child’s educational and social needs. Ultimately, the court will decide based on what is deemed in the child’s best interest. A Trust Account Advocate may represent a client directly in a child relocation matter.

What is a parenting plan?

A parenting plan is a legal document that outlines the rights and responsibilities of each parent in the upbringing of their child or children after a separation or divorce. This plan is created to ensure that each parent is aware of their obligations and that the child’s best interests are considered. It typically includes details about the child’s living arrangements, visitation schedules, decision-making responsibilities, and financial arrangements. Parenting plans are usually created through mediation or negotiation between the parents, with the assistance of a lawyer, social worker, psychologist or the Office of the Family Advocate. A parenting plan can reduce conflict and provide a stable and predictable environment for the child. A Trust Account Advocate may assist a client directly in a matter involving a parenting plan.

What is child guardianship?

Child guardianship is a legal term that refers to the responsibility and authority of a person to make decisions about the care, welfare, and upbringing of a child who is not their biological child. This can happen when the child’s parents are unable or unwilling to care for the child due to various reasons such as death, illness, or incarceration. The guardian then assumes the role of a parent, making decisions about the child’s health, education, and general well-being. Guardianship can be temporary or permanent and can be granted by a Court. The primary goal of child guardianship is to ensure that the child is provided with a safe and stable environment free from neglect or abuse. A Trust Account Advocate may represent a client directly in a child guardianship matter.

What is passport consent?

Passport consent is a legal requirement that specifies that both parents or legal guardians must provide their written consent before a child can obtain a passport. This is intended to prevent child abduction and ensure both parents have equal rights and responsibilities regarding their child’s travel. Passport consent is required for children under 18, although the age limit may vary depending on the country. Both parents must sign the consent, and in some cases, they may need to provide additional documentation, such as proof of custody or a court order. Without the consent of both parents or legal guardians, a child will not be allowed to obtain a passport or travel internationally. This is confirmed in the Children’s Act. A Trust Account Advocate may represent a client directly in a passport consent matter.

What is domestic violence?

Domestic violence is any form of abusive behaviour in a personal or family relationship. This can include physical, sexual, emotional, or psychological abuse, financial control or coercion. Domestic violence can occur between partners, spouses, parents and children, siblings, or other family members. It is a severe issue that affects people of all ages, genders, and socioeconomic backgrounds. Domestic violence can have severe and long-lasting effects on the victim’s mental and physical health, and it is a leading cause of injury and death for women worldwide. It is essential to seek help if you or someone you know is experiencing domestic violence, as resources are available for support and assistance. A Trust Account Advocate may represent a client directly in a domestic violence matter.

What is a prenuptial contract?

A prenuptial contract, also known as a prenuptial agreement or prenup, is a legal agreement between two people planning to marry. This agreement sets out how the couple’s assets will be distributed in the event of divorce, separation, or the death of one of the parties. A prenuptial contract can cover various issues, such as property ownership, spousal support, and inheritance rights. It is designed to protect each party’s financial interests and to provide clarity and certainty in the event of a relationship breakdown. Prenuptial contracts are not just for wealthy couples, and they can be helpful for anyone who wants to protect their assets and avoid prolonged and costly legal disputes in the event of a separation or divorce. A Trust Account Advocate may represent a client directly in an issue involving a prenuptial contract.

What is a pre-nikkah agreement?

A pre-nikkah agreement is a legal agreement between two people who plan to get married under Islamic law. This agreement sets out the rights and responsibilities of each party in the event of a divorce or separation. It can cover issues such as property division, financial support, and child custody. The purpose of a pre-nikkah agreement is to provide clarity and certainty to both parties in the event of a future dispute. It is important to note that the validity and enforceability of pre-nikkah agreements vary by jurisdiction and may be subject to certain legal requirements. A Trust Account Advocate may assist a client directly with a pre-nikkah agreement.  

What is An Advocate in South Africa?

An advocate in South Africa is a legal professional who specialises in courtroom advocacy and giving legal advice. They are usually trained and hold experience in representing clients in court (High Court and Magistrates Court), drafting legal documents (Affidavit and Pleadings) and providing legal advice on various legal matters. There are two types of Advocates in South Africa. One is a referral advocate, and the other is a Trust Account Advocate. A referral advocate may only take on work referred to it by an attorney. There are certain exceptions. A Trust Account Advocate may take on work directly from members of the Public.

In some countries, such as the United Kingdom, barristers (advocates) are distinct from solicitors (attorneys), who are legal professionals but tend to focus more on advising clients outside of court and handling legal transactions.

Why can Trust Account Advocates take on work directly from members of the Public?

All Trust Account Advocates have Trust Banking Accounts and Fidelity Fund Certificates. The Client would then pay money into the Trust Account Advocates banking account, which funds are protected. Therefore, should a Trust Account Advocate misappropriate the capital of a client who paid money into the Trust Banking Account, the Client can claim from the Fidelity Fund.

What is child custody law?

Child custody refers to parents’ legal rights and responsibilities (Parental Responsibilities and Rights) over their children after a separation or divorce. This includes having access or contact with the child and making decisions about their child’s upbringing, such as their education, healthcare, and religious upbringing. A Trust Account Advocate may represent a client directly in a child custody matter.

What is child maintenance law?

Child maintenance law, also known as child support law, refers to the legal framework that governs the financial support a non-custodial parent must provide for their child. Child maintenance laws help ensure that both parents are financially responsible for their child’s upbringing and well-being, even after a separation or divorce. The law provides guidelines for determining how much child support should be paid, how often it should be paid, and how it is collected. In South Africa, we have the Maintenance Act and the Maintenance Courts. A Trust Account Advocate may represent a client directly in a child maintenance matter.

What is divorce law?

Divorce law refers to the legal rules and regulations that govern terminating a marriage. This includes the grounds for divorce, division of property, spousal support (alimony), child custody, and visitation rights. Divorce laws vary from country to country and even from state to state within a country. These laws ensure that the divorce process is fair and equitable for both parties involved. They provide a legal framework for resolving disputes and ensuring that the rights and interests of all parties, including any children involved, are protected. A Trust Account Advocate may represent a client directly in a divorce matter.

What does child relocation law mean and entail?

Child relocation law refers to the legal rules and regulations governing children’s movement from one geographical location to another. This can either relate to provincial or international relocation. This law concerns the child’s well-being and ensures that relocation is in their best interest. It entails a range of factors that need to be considered, such as the child’s relationship with each parent, the distance of the proposed move, and the child’s educational and social needs. Ultimately, the court will decide based on what is deemed in the child’s best interest. A Trust Account Advocate may represent a client directly in a child relocation matter.

What is a parenting plan?

A parenting plan is a legal document that outlines the rights and responsibilities of each parent in the upbringing of their child or children after a separation or divorce. This plan is created to ensure that each parent is aware of their obligations and that the child’s best interests are considered. It typically includes details about the child’s living arrangements, visitation schedules, decision-making responsibilities, and financial arrangements. Parenting plans are usually created through mediation or negotiation between the parents, with the assistance of a lawyer, social worker, psychologist or the Office of the Family Advocate. A parenting plan can reduce conflict and provide a stable and predictable environment for the child. A Trust Account Advocate may assist a client directly in a matter involving a parenting plan.

What is child guardianship?

Child guardianship is a legal term that refers to the responsibility and authority of a person to make decisions about the care, welfare, and upbringing of a child who is not their biological child. This can happen when the child’s parents are unable or unwilling to care for the child due to various reasons such as death, illness, or incarceration. The guardian then assumes the role of a parent, making decisions about the child’s health, education, and general well-being. Guardianship can be temporary or permanent and can be granted by a Court. The primary goal of child guardianship is to ensure that the child is provided with a safe and stable environment free from neglect or abuse. A Trust Account Advocate may represent a client directly in a child guardianship matter.

What is passport consent?

Passport consent is a legal requirement that specifies that both parents or legal guardians must provide their written consent before a child can obtain a passport. This is intended to prevent child abduction and ensure both parents have equal rights and responsibilities regarding their child’s travel. Passport consent is required for children under 18, although the age limit may vary depending on the country. Both parents must sign the consent, and in some cases, they may need to provide additional documentation, such as proof of custody or a court order. Without the consent of both parents or legal guardians, a child will not be allowed to obtain a passport or travel internationally. This is confirmed in the Children’s Act. A Trust Account Advocate may represent a client directly in a passport consent matter.

What is domestic violence?

Domestic violence is any form of abusive behaviour in a personal or family relationship. This can include physical, sexual, emotional, or psychological abuse, financial control or coercion. Domestic violence can occur between partners, spouses, parents and children, siblings, or other family members. It is a severe issue that affects people of all ages, genders, and socioeconomic backgrounds. Domestic violence can have severe and long-lasting effects on the victim’s mental and physical health, and it is a leading cause of injury and death for women worldwide. It is essential to seek help if you or someone you know is experiencing domestic violence, as resources are available for support and assistance. A Trust Account Advocate may represent a client directly in a domestic violence matter.

What is a prenuptial contract?

A prenuptial contract, also known as a prenuptial agreement or prenup, is a legal agreement between two people planning to marry. This agreement sets out how the couple’s assets will be distributed in the event of divorce, separation, or the death of one of the parties. A prenuptial contract can cover various issues, such as property ownership, spousal support, and inheritance rights. It is designed to protect each party’s financial interests and to provide clarity and certainty in the event of a relationship breakdown. Prenuptial contracts are not just for wealthy couples, and they can be helpful for anyone who wants to protect their assets and avoid prolonged and costly legal disputes in the event of a separation or divorce. A Trust Account Advocate may represent a client directly in an issue involving a prenuptial contract.

What is a pre-nikkah agreement?

A pre-nikkah agreement is a legal agreement between two people who plan to get married under Islamic law. This agreement sets out the rights and responsibilities of each party in the event of a divorce or separation. It can cover issues such as property division, financial support, and child custody. The purpose of a pre-nikkah agreement is to provide clarity and certainty to both parties in the event of a future dispute. It is important to note that the validity and enforceability of pre-nikkah agreements vary by jurisdiction and may be subject to certain legal requirements. A Trust Account Advocate may assist a client directly with a pre-nikkah agreement.

 

Related Post

Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Hopefield Children’s Court

 

Family law legal matters can be very stressful. This is so whether you live in Hopefield or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client.

This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in Hopefield. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in Hopefield or any other city in South Africa.

What to do before visiting the Hopefield Children’s Court

Before you approach the Children’s Court in Hopefield, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. Hopefield has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the Hopefield Children’s Court for assistance.

TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.

Approaching the Hopefield Children’s Court

The Hopefield Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Hopefield Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you.

Once you arrive at the Hopefield Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2.

In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:

  • PART A: PARTICULARS OF CHILD(REN)
  • PART B: PARTICULARS OF *CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON *ACTING IN THE INTEREST OF THE CHILD/*ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ *MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
  • PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
  • PART D: PARTICULARS OF MATTER

In part D, the following is stated which you need to provide in the form:

  • Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
  • Documents: Are there any documents relating to the matter? (If so please attach)

Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Hopefield.

TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.

Processing your Application at the Hopefield Children’s Court

Once you complete the Form A and submit it to the Clerk of the Hopefield Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow.

TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.

Appearing in the Hopefield Children’s Court

When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:

  • Get a social worker involved in the matter;
  • Appoint a legal representative for the minor child;
  • Implement interim care and contact arrangements;
  • Having the parties attempt to agree on a parenting plan;
  •  

In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests.

TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.

Finalising the matter in the Hopefield Children’s Court

Once the Hopefield Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later.

TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.

The above Hopefield Children’s Court Application tips 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, Hopefield, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester