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Filter: Child
Can a minor validly enter a contract?

19 June 2024,  Jaimee Best

Many people are aware that minors have a ‘limited’ capacity when it comes to legally binding themselves and entering contracts,... however, the circumstances in which a valid contract can be concluded by a minor are less commonly known. 

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Article
Are you a divorced or separated parent during Christmas? Navigate the festive season with a parenting plan.

23 December 2022,  Chang-Lin Dirks

Who gets the kids on which days? Will I be able to take my child to my family in a different... province or country for the festive season? To what extent is my child allowed to spend time with me at my place of residence? Do these questions sound familiar?

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735
Article
Can you claim maintenance for your adult children?

15 September 2022

It has been a well held view in our law that a parent cannot claim maintenance for an adult dependent... child from their divorced spouse. But is this still the case or has a recent Supreme Court of Appeal finding changed the position?

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Article
Can an unmarried father register a child under his surname?

15 November 2021

I’m the father of a newborn daughter. The mother, to whom I’m not married, disappeared immediately after birth leaving me... as sole parent of my daughter. Because I don’t know where the mother is I cannot get the mother’s consent. Without this consent Home Affairs does not want to register my daughter under my surname. I have no idea what to do now. Can you help?

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Article
When do maintenance obligations prescribe?

20 May 2021

My ex-husband has for some time now not paid his maintenance as per the court order. Because I had a... job and was earning a basic income, I just left it as I didn’t want the hassle of trying to get him to pay. Now I’ve been retrenched and have asked him to pay his outstanding maintenance, but he refuses and says his attorney told him that his obligation to pay has prescribed. Surely this can’t be right?

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910
Article
Who can inherit from a child’s estate?

10 February 2021,  Natalie Steenkamp

I have a friend who has been looking after her grandson since birth when her daughter just walked out on... the child after he was born with deformities. My friend managed to obtain a settlement with the hospital for negligence during the birth and now takes care of the child using the money from the settlement. The child is very sick and may not have much time left with the biological mother suddenly making an appearance to try and claim the remainder of the settlement money. Surely my friend is entitled to the money having taken care of the child all her life? What is the position in law?

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Article
Is government liable for an accident at a private nursery school?

10 November 2020,  Japie Kruger

I recently saw an article in the news saying that the Western Cape Department of Social Development was not responsible... for injuries caused to a child in a day care funded by the Department. Surely this cannot be right and the Department should be responsible? 

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Article
Fighting for a child's best interest once a parent passes away

05 November 2020,  Ilze Strydom

Death is a topic not many wish to think or talk about, especially when it comes to the passing of... a parent or parents of minor children. The sad reality is that parents do at some point pass away, with their children then having to be cared for by someone else. Usually, although always extremely sad, the care of the children is not a problem as the surviving parent will continue with their care. The question however arises, what happens when the parents are no longer married or in a relationship and the primary care giver passes away and the relationship between the children and the surviving parent is not good, or the surviving parent is not in a position to care for the children?What many parents do, is to include a clause in their last will and testament awarding guardianship and care to someone other than the other surviving biological parent. But what weight does such a clause carry? The short answer is a lot, but without a court order confirming it, no weight at all.  South African law determines that the biological parents of a child are almost always automatically the guardians of the child and have the rights to care of the child. What follows is that when one parent passes away and the parents are no longer together when it happens, the other parent in most cases will be the first choice as the primary care taker of the child. However, this is not always in the best interest of the child and any person who has a material interest in the wellbeing of the child, may apply to court to obtain rights which can include guardianship and primary care. When the deceased, in their will, nominates a person as the guardian or care taker at their passing, that person will not automatically acquire the rights envisaged by the deceased and must approach a court to vest these rights, should it be in the child’s best interest. The wishes of the parent who passed and was the primary care taker of the child, will obviously carry a lot of weight when the decision of where the child will live and who will be the child’s guardian is concerned, but it is not the determining factor. The best interest of the child is.The best interest of the child will include factors such as who will be best suited to cater to the child’s emotional, spiritual and educational needs, with whom does the child feel safe and secure, what is the relationship between the child and the person applying for guardianship or care and how will the placement affect the other parents’ rights. It is advisable that parents include the “guardianship clause” in a will, as this will be helpful to any party who has the interest of a child at heart, in the event of that person not being the child’s biological parent and at the passing of the primary care taker.Any person who is faced with the unfortunate situation of having to deal with the care of child at a parent's passing, is encouraged to consult a family law attorney to assist them in the application to court, so as to ensure that the child’s best interest is served. 

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Blog
Part 2: The Cannabis for Private Purposes Bill - on cultivation, erasing criminal records and protecting children

07 October 2020

In Part 1 of this two-part blog series on the 2020 Cannabis for Private Purposes Bill that has been tabled in... parliament and what to expect should it become law, I discussed the amounts of cannabis it provides for adults to have in their possession. I further outlined the penalties for contravening the provisions of the Bill, and how the offences in terms of this Bill, are categorised. If you missed it, just click here.Here in Part 2 I will provide more details on other pertinent points in the Bill, including the cultivation of cannabis, the Bill's position on cannabis use and cultivation in relation to children, as well as the possibility that any criminal records pertaining to the possession and use of cannabis should be expunged automatically. Yes, you have read correctly. Cannabis cultivation for personal use This Bill makes provision for you to cultivate cannabis for personal use and obviously possess cannabis plants for this purpose too.The Bill goes into some detail regarding the different stages of the plant’s life cycle which in turn has bearing on the parameters for possession of cannabis plants and how it is regulated.Firstly, the Bill differentiates between immature cannabis plants (being a non-flowering plant not taller or wider than 15cm) as well as flowering cannabis plants (being a cannabis plant in its reproductive state in which the plant produces the flowering tops that are harvested and dried) while seeds and seedlings are referred to as cannabis plant cultivation material.As a side note for those who might want to get technical, a plant larger than an immature cannabis plant might still be in a vegetative state and not actually flowering. However, I take it the lawmaker’s intent is to classify such a plant as a flowering cannabis plant for the purpose of cultivation and the subsequent penalties herein.While you are allowed to possess an unlimited amount of cannabis plant cultivation material, limitations are however applicable for immature and flowering cannabis plants with one flowering cannabis plant being equivalent to two immature cannabis plants.With that in mind, an adult is allowed to cultivate four flowering cannabis plants or its equivalent in immature plants for personal use, while eight flowering plants are allowed per dwelling that’s occupied by two or more adults.The table below indicates the penalties pertaining to quantities:    Allowed quantity of flowering cannabis plant or its equivalent Trafficable quantity of flowering cannabis plants or its equivalent Commercial quantity of flowering cannabis plant or its equivalent Per adult  4 6 9 Per dwelling occupied by two or more adults  8  12 18  Penalties for contravention  More than this quantity but less than a trafficable quantity:Class C offence  Class B offence  Class A offence    Now, we are aware that children are (obviously) not allowed to possess or consume cannabis or cannabis equivalents, but can they grow cannabis?The Cannabis for Private Purposes Bill’s stance on offences involving a childIn this case, the intention is clearly to provide comprehensive protection when it comes to the possession, consumption, distribution as well as cultivation of cannabis and its relation to children.For instance, it is a class C offence to smoke cannabis in the immediate presence of a child. Also, failure to store cannabis in a secure space that is inaccessible to a child also constitutes a class C offence, regardless of it being in a public or private space.Guardians will be held accountable and may be convicted of a class D offence should they permit a child to: Possess or deal in cannabis plants and/or cultivation material; Possess, deal or consume cannabis; Cultivate a cannabis plant. It is interesting to note, however, that a child is allowed to assist in the cultivation of cannabis under the supervision of a guardian who is lawfully cultivating cannabis for private use, as long as it is done within the confines of the Bill and occurs in a private place.On a more serious note, provision is made for a number of severe class A offences, specifically pertaining to children, being: Any person who engages a child to deal in cannabis, cannabis plants or cannabis plant cultivation material; Any person who provides a child with cannabis, cannabis plants or cannabis plant cultivation material; Any adult person who engages a child in the cultivation of a cannabis plant; Any person who administers cannabis to a child. The above points will apply and a person may be found guilty of a class A offence, whether their actions had the purpose of some form of compensation or not. Expungement of cannabis related convictionsIt turns out that this Bill also has some good news in store for those who have criminal records relating to cannabis. The Bill provides for criminal records pertaining to the possession and use of cannabis to be expunged automatically. Bear in mind that this only applies to convictions for the use and possession of cannabis, but this is good news nonetheless.As is the case with many new pieces of legislation, should the Bill become law there is always the possibility of your individual records slipping through the cracks. Should this be the case, there are certain steps that you can (and should!) take to ensure that your specific case is dealt with fairly and ensure that your criminal record for the use and possession of cannabis is expunged. The Bill requires that any applicants who meet the relevant requirements and wish for their criminal record(s) to be expunged, may apply to the Director General of Public Prosecutions in writing in the prescribed form and manner for this expungement to take effect. This can be done personally, but it is advisable to obtain the advice and assistance of an attorney to ensure that your matter is handled correctly.Once a person’s criminal record has been expunged, the Criminal Record Centre of the South African Police Service must issue written confirmation of the successful expungement. I hope you now have much greater clarity about what the Bill entails.You’re welcome to get in touch should you have any further questions or concerns regarding this progressive new Bill.

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COVID-19 in South Africa: will the national lockdown affect my right to see my children?

01 April 2020

I am a divorced father of three minor children. Our children live with their mother primarily and our divorce order... states that I will have them with me for half of every school holiday and on every second weekend. Does this still apply during the national lockdown?

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Article
Spanking your child a confirmed no-no for parents

11 November 2019

I’ve recently read in the news that apparently spanking your child is no longer allowed for parents. I thought this... had been settled a while ago. Why is this news again?

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Article
Bishops boys don't cry, or do they?

22 October 2019,  Ilze Strydom

This past two weeks the media were abuzz with reports of Fiona Viotti, the Bishops Diocesan College water polo coach,... who resigned last week amid allegations of a sexual affair with a matric pupil. It was also reported that school principal Guy Pearson said that several boys "have been affected over a number of years".Interestingly enough, when speaking to a male friend of mine about the idea of a school boy having an affair with a female teacher, his view was an enthusiastic “attaboy!” To me, that’s in strong contrast with what would have been the view if a matric school girl allegedly had an affair with a male teacher - that instead, the girl is a victim of unacceptable behaviour, and that the teacher is a predator who used his position and relationship in an inappropriate manner.To my mind this highlights the difference in perspective society seems to have when it comes to sexually inappropriate behaviour towards women and children. Have you ever paused to considered that this is not bound by gender or age, and that men are exposed and left vulnerable to abuse and the effects thereof too? In the course of my experience as Family Law attorney, I’m constantly reminded that the Children’s Act does not distinguish between male and female children. In fact, it specifically provides therefor that children (thus any person younger than 18) must be protected from maltreatment, neglect, abuse or degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards. I find that this obviously includes protection against the behaviour alleged in the above-mentioned Bishops matter. Were the child younger than 16 years old, criminal prosecution would follow from the actions as well. When it’s a man of 18 years old and older that is placed in this position, the remedies he can take is to lay a criminal charge, obtain an interdict in accordance with the provisions of the Protection of Harassment Act, obtain an interdict in accordance with the provisions of the Domestic Violence Act (if applicable), lay a complaint of sexual harassment and/or institute civil action for damages suffered.This is a necessary reminder and encouragement to men and boys to speak out about inappropriate behaviour against them without fear of being perceived as weak, and to utilise the law to protect them from any form of abuse. 

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