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Month: June 2016

WHEN AN ABUSED CHILD NEEDS HELP

WHEN AN ABUSED CHILD NEEDS HELP

A3There are instances when a child may need help or protection. An abused or neglected child, for example, might need intervention with the state’s help. Fortunately, the Children’s Act, 2005 (Act 38 of 2005) gives effect to the rights of children contained in our constitution. These rights are carried out by the Children’s Court, which is expressly concerned with the care and safety of children (under 18).

The Children’s Act differs from previous legislation about children and covers other aspects relating to their rights. For instance, the Act gives effect to The Hague Convention on International Child Abduction and of Inter-Country Adoption. It also makes new provisions for the adoption of children.

What is The Children’s Act?

The Children’s Act deals specifically with matters regarding children’s care and protection and should not be confused with The Child Justice Act, 2008, which deals with children who are accused of committing an offence. The Children’s Court plays an important role in the practise of the Children’s Act.

The Children’s Court deals with all matters relating to the physical and emotional wellbeing of a child. Some of these include:

  1. the protection and well-being of a child
  2. the care of, or contact with a child
  3. support of a child
  4. prevention or early intervention services
  5. maltreatment, abuse, neglect, degradation or exploitation

Children’s Courts have the responsibility to make decisions about abandoned or neglected children and also take care of children needing protection or care. The Children’s Court won’t make judgements in criminal cases involving children, however, a social worker may remove a child from their guardians or parents if it’s in the child’s best interest. To find a Children’s Court is not very hard as every Magistrate’s Court in South Africa is also a Children’s Court. The magistrate also acts as the presiding officer of the Court.

The Act and parental rights and responsibilities

The Children’s Act not only deals with children but also parents and guardians concerning their rights and responsibilities. Some of the parental rights and responsibilities includes caring for the child, maintaining contact with the child, acting as the child’s guardian and contributing to the maintenance of the child.

Going to the Children’s Court

There are some people who have a social responsibility and requirement to go to a Children’s Court if they suspect a case of child abuse. These people include teachers, social workers, lawyers, ministers of religion and nurses. On the other hand, any person may go to the Children’s Court clerk if they are concerned about a child’s safety and protection. You do not have to be the parent or guardian of the child to raise an issue with the clerk. A child also has the right to go to the Court with a matter as long as it’s within the jurisdiction of that particular Court.

The Court has a friendly and relaxed atmosphere, which is designed to make it as comfortable as possible for children. When the court makes a decision on what to do with a child it uses the guidance of a report from a social worker. The report highlights the best interests of the child. The Court will take into consideration the social worker’s suggestions. The Court order is not permanent and will usually lapse after a two-year period.

Reference:

Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.

Justice.gov.za. The Department of Justice and Constitutional Development, Family Law, The Children’s Act, 2005 (Act 38 of 2005). [online] Available at: http://www.justice.gov.za/vg/children/ [Accessed 19/05/2016].

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

SAFEGUARDING CHILDREN’S RIGHTS DURING DIVORCE

SAFEGUARDING CHILDREN’S RIGHTS DURING DIVORCE

A2Divorce and the resulting challenges regarding child custody and the responsibilities of parents can be an ugly and difficult process. This is especially true of the children whose emotional and physical wellbeing would have to be taken into account during the entire process. However, the office of the Family Advocate offers an efficient and free service with the wellbeing of the child in mind.

The Family Advocate (FA) manages disputes regarding the responsibilities and custody of children during and after a divorce. The point of the FA is to protect the rights of children and ensure that their best interests are taken into account when it comes to their custody and the parent’s responsibilities. The office of the FA is not just one person but consists of lawyers and social workers who all assist in getting the best outcome for the child/children.

What can the Family Advocate do?

Section 28(2) of the Constitution says, “A child’s best interests are of paramount importance in every matter concerning the child”. This forms the basis of the FA’s role in disputes.

The Family Advocate has the ability to:

  1. Institute an enquiry so as to be able to furnish the court with a report and recommendation on any matter concerning the welfare of the minor child;
  2. Appear at the trial or hearing of any relevant application;
  3. Adduce any available evidence; and
  4. Cross-examine witnesses giving evidence at such trial or hearing of an application.

*According to Mediation in Certain Divorce Matters Act (Act 24 of 1987)

The Children’s Act 2005 (Act 38 of 2005) has also made mediation by the FA compulsory for all parties involved in parental rights and responsibility disputes over children born out of wedlock.

What’s the point of the Family Advocate?

The FA has many advantages when there is a dispute over children. The FA can change the parental rights and responsibilities agreements of the parents without the need to go to court. A court will also take into consideration a report by the FA before making any decision on the child, they are even required by law to do this. Furthermore, a registered parental rights and responsibilities agreement would be considered the same as a court order. The office of the FA also allows for the children involved to express their point of view and desires. In order to ensure the best for the child/children, the FA will work together with social workers, psychologists and other professionals when dealing with disputes.

Reasons to see the Family Advocate

  1. The parties disagree about how to contact or care for a child.
  2. They want to draft, register or change their parental rights and responsibilities agreement.
  3. Disputes about whether an unmarried father of a child born out of wedlock fulfils the requirements making him eligible for the full parental rights and responsibilities of the child.

A court may also order the FA to provide a report on what is best for the children involved in a dispute. Altogether, the FA’s goal is to ensure the child gets the best out of a divorce process and that their rights are protected. They can not only help in disputes, but also provide a comfortable environment and process for what can be a stressful time for the children involved.

Reference:

“The Office of the Family Advocate”. The Department of Justice and Constitutional Development. Accessed from: http://www.justice.gov.za/FMAdv/ on 13/05/2016.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

COMMERCIAL “COMMON LAW” EVICTIONS

COMMERCIAL “COMMON LAW” EVICTIONS

A1To evict a tenant from your property in any given situation can be a cumbersome and drawn out process, especially if the lease agreement is not properly drafted and the correct processes not followed.

The so-called common law eviction available to an owner or landlord applies to:

  • Evictions from property used by occupiers for commercial purposes (e.g. offices & factories). Therefore, even residential property not being used for residential purposes is also included;
  • Agricultural land which is not used by occupiers for residential purposes.

It is therefore the use of the property that is the determining factor and not the zoning of the land.

Evictions from buildings/property used for residential/dwelling purposes fall under The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of 1998 or the Extension of Security of Tenure Act No. 62 of 1997. These Acts are not applicable to commercial evictions.

Commercial eviction proceedings may be brought by way of action or application proceedings in the High Court or by way of action proceedings in the Magistrate’s Court. Usually, the lease agreement will provide for Magistrate’s Court jurisdiction.

It is not a requirement in a commercial eviction that the lessor/landlord be the owner of the property. An agent can therefore also act as applicant, provided he/she can prove locus standi.

If a lease agreement has been concluded between the landlord and the tenant, the lease agreement must first be cancelled before eviction proceedings can commence. The lease agreement should provide for the process to be followed. If it is a fixed term lease, regard must be had to section 14 of the Consumer Protection Act No. 68 of 2008 (“the CPA”). If section 14 does apply, the landlord must give 20 business days written notice of a breach of the lease agreement (in most cases the tenant commits a breach by failing to make timeous payment of the rental amount.) The landlord can therefore only cancel the lease after expiry of the 20 day period and upon the failure of the tenant to rectify the breach.

Section 14 of the CPA does not apply in the following instances; therefore it will not be necessary to give 20 business days’ notice of a breach before being able to cancel the lease in these circumstances:

  • If the tenant is an organ of State (municipality, state department etc.);
  • If the landlord and tenant are both juristic persons (companies, cc’s etc.);
  • Once-off leases;
  • If the tenant is a juristic person with an income/turnover above R2 million per year.

As is evident from the above, once a tenant is in breach, it is vital to act quickly and notify the tenant to remedy their breach accordingly. If proper action is taken – within the legal framework of course- the problem tenant can be evicted as soos as possible and the property leased to a new (paying) tenant.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)