Archive for the ‘Uncategorized’ Category

Debt Counselling-Another Con?

When the legislation was introduced there was a lot of hope and belief that there would be real relief for those who had experienced financial difficulties and who were trying to sort out their financial woes. Alas that is not what is happening. All sorts of people have registered themselves as counsellors, all those folk who have failed at everything else have set themselves up to advise and assist. Talk about the one-eyed being king of the blind, well this is definitely the case. What has now happened is that there is another layer of “professional” who preys on the financially bereft, and what is more he has been shuffled to the front of the queue and he takes of the unsuspecting debtor’s first fruits. It is only after the DC has been paid that the other “protection” in terms of the Act comes into play and it has not proved very effective. While the proposed distribution plans languish in the halls of justice waiting for overworked or reluctant magistrates to approve the distribution plans, the debtor is at the mercy of creditors who ignore notices etc from the counsellor. In true David and Goliath style it is up to the broke debtor to somehow take on his creditor who has repossessed his vehicle or other goods and now not only has he paid someone else in the financial food chain but he is in a worse position than before – no vehicle. God help those reps and others who need their vehicle for work. So I ask myself was this just another badly conceived idea or was it a deliberate con to get all the unscrupulous advisers onto the “taking from the poor” gravy train?

Good quality and free advise is hard to come by however the Family Law Clinic not only givse free legal advice but also arranges and organizes affordable assistance where so required for their clients.  It is very obvious that most people just cannot afford to litigate in the traditional method to  solve especially family  issues. This is so obvious that negotiated and mediated solutions are essential for not only resolving issues but preserving and possibly even growing relationships to resolve issues.

So often the traditional approach breaks bonds and relationships, polarizes parties and harms and hurts the very vulnerable, adults and children which the parties profess to want to protect in their litigious zeal and last but not least is just too expensive. Intervention, mediation and other forms of Alternative Dispute Resolution (ADR) mechanisms, in the hands of a trained professional help to identify the problem and then give that problem the attention of both parties through the ADR process and can cost just so much less.

Being part of a resolutive process not only empowers the parties through this process but allows them to participate in finding workable and long term solutions to the family’s problems and may just be the way to solve an expensive problem.

So if you want FREE LEGAL ADVISE PLUS a measured and sensible assessment of the most effective solution, financial and otherwise contact the Family Law Clinic on:

Tel +27218715504

e-mail: info@familylawclinic.org.za

Fax: +27218517506.

Why marry and not just live together

The marriage is currently the only social / legal institution that protects the rights of social partners or spouses, as they are called inside marriage, without having to enter into additional agreements, as there is an automatic and reciprocal duty of support between spouses, duty of maintenance during and in some cases after termination of the marriage, spouses can inherit from one another through testate (will) and intestate succession, etc.

The legal and proprietary consequences of life partnerships or cohabitation relationships should be regulated by a partnership agreement. However, in the absence of agreement, partners can still approach a court, after the relationship has been terminated (by death or separation), for an order for maintenance, an intestate succession order and / or an order dividing the property.

In these instances the courts must have regard to all the circumstances of the relationship before giving an order. This, however, is an expensive and time consuming process with no guarantee a satisfactory outcome for the parties.

Couples who are in unrecorded life partnerships are urged to employ the services of an attorney to draft and assist in the execution of a suitable partnership agreement and to make the necessary legal provisions in their wills.

Can’t afford to Litigate- The cost of Justice

Nobody budgets for litigation. When issues arise, the reality is that most of us can’t afford to litigate. Those fortunate enough to be able to afford it, consider it a grudge spend. Cost is often the greatest barrier to litigation. Who wants to spend his or her hard earned cash on something as negative as litigation. However as long as human nature is what it is and people clash with each other, it is important to have some mechanism to resolve issues and conflict. So what are the options available to you when you find yourself in a conflict situation?

Firstly consider very carefully the cost, both financially and emotionally, of your response. To litigate only to defend a principle can come at enormous cost. Consider walking away.

If avoiding the conflict is not possible, consider alternative dispute resolution. This will include dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement instead of litigation. These represent other way that parties can settle disputes, with (or without) the help of a third party. ADR is the most effective method of resolving disputes outside the judicial process (in other words formal litigation in court). ADR is more efficient and effective than the courts in providing justice.
Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact the new Children’s Act 38 of 2005 in general underpins the importance of a conciliatory and non-confrontational approach to the settlement of child-centered disputes. It very specifically refers to mediation as an appropriate means of dispute resolution. In some instances the Act expressly mandates mediation and in others the Act grants the court the discretion to order mediation. There are also several provisions in the Children’s Act which do not specifically mention mediation, but where mediation is definitely implied.

The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute

Should ADR be unsuccessful, before approaching lawyers, who are generally very expensive, one should explore other legal resources, state run or otherwise These organisations could help by  through formal court-based litigation or even by using ADR to resolve issues. For an organisation that could assist you to decide on the best and most cost effective way to solve such a problem I refer you to THE FAMILY LAW CLINIC on www.familylawclinic.org.za

Protecting the Elderly – Using the Power of Attorney vs Curatorship

Protecting the vulnerable in the community is essential in any society. It is  not only women and children who are the subject of society’s to abuse but the elderly too.. It is those who have loved and cared for us who become the target of anger and frustration who need special care and looking after. How do we protect these folk

The Power of Attorney (PoA) was originally developed for business purposes, where the principal appoints an agent to act on his behalf. However the PoA is invalid once the principal is no longer fully capable of understanding it.  For this reason, the PoA is only of use, in the case of dementia, in the early stage.  Once it becomes invalid, it may be necessary to opt for administration or curatorship.  In these cases, it does not allow for occasional capability (lucid intervals).

Curatorship

The Curator route is via a high court application for the such appointment, in terms of common law.  There are two forms of curatorship and one or both may be appointed:

• the curator bonis administers the person’s property, including the finances, he
• the curator personae takes personal decisions for the person. This involves serious curtailment of the person’s rights and freedoms and the court is therefore not easily persuaded to grant such an appointment.

The court requires two medical reports, one of which must be from a psychiatrist.  It is important to mention that curatorship does not give as many powers as people imagine.  For example, a curator has no locus standi to institute an action for divorce on behalf of a person declared to be mentally ill.  Nor can a curator make a will or exercise parental authority on behalf of such person.

An important point is that appointing a curator can strip the person of feelings of self-worth, to the extent that it can trigger a rapid decline.

Administration

The Mental Health Care Act (17 of 2002), which came into effect on 15 December 2004, allows for the appointment of an administrator to manage the person’s property.  This Act applies only to the mentally ill and to those with severe or profound intellectual disability.

It is not necessary to go to the high court for this as you can apply direct to the Master of the High Court.  A mental health care practitioner who could be a general practitioner and not necessarily a psychiatrist – certifies that the person suffers from an illness or disability relating to mental health.  .

The Master requires proof that the person has seen the application and had the opportunity to object to it.

The cost and duration of the application depend on the person’s assets:

• with capital assets less than R200,000 or income of up to R24,000 pa, it‘s quick and there are no costs, other than those incurred to obtain the medical evidence required for the application.
• above that, the Master is obliged to appoint an interim administrator and cause an investigation to be conducted.  The investigator looks at every aspect:  finances, medical, family and the applicant him/herself, then makes a recommendation to the Master.  In this case the costs payable to the investigator are negotiated by the Master, and are payable out of the estate

Appointment of an administrator is generally much cheaper than obtaining curatorship, but be aware that less extensive cover is granted than in curatorship.

Mediation Advantages and Disadvantages

History of Mediation

Mediation practices date back to Phoenician society, ancient Greece, and Rome. In some cultures around the world, the mediator is regarded as an important figure in the community, worthy of great respect. Buddhist traditions also encourage dispute resolution through discussion and mutual agreement rather than by force or by third-party arbitration.

Alternative Dispute Resolution techniques such as conciliation and mediation are still highly favored processes throughout East Asia. Islamic culture has also historically embraced the process of mediation to resolve community disputes. In 1980 the United States Congress passed the Dispute Resolution Act calling for ADR programs nationwide to be administered by the Justice Department.

General Framework and Philosophy of Mediation

In mediation, a neutral party facilitates communication between parties to enable them to reach a mutually acceptable resolution to the dispute in question. The process is intended to be highly confidential so as to allow the parties to communicate freely, without fear of their statements becoming public. A mediator generally assists the parties in generating options and creative solutions that will help to resolve the dispute. Mediators do not exert direct control over the outcome of the process, in contrast to what a judge or arbitrator may do. Instead, the parties mutually agree, on a voluntary basis, to a specific, legally enforceable resolution.

In contrast to a traditional legal setting, such as litigation, lawyers are unnecessary in the mediation process, although they may have occasion to participate in some circumstances. A mediator, unlike a lawyer, does not advocate for one side or another, and should, in fact, be disinterested in the outcome of the dispute. The fact that a mediator does not have the authority to impose a decision upon the parties is a great advantage to the mediation process because it disincentivizes the parties to lie or exaggerate their claims, as they might otherwise do in a traditional legal setting. In fact, it has been widely observed that in this particular setting, the parties themselves tend to step forward as leaders to resolve the situation on their own, instead of conceding the process to a judge or arbitrator.

In addition to facilitating discussion, mediators often carefully help the parties to reasonably evaluate their position, interests, risks and options. Throughout this process, the mediator must proceed cautiously to ensure neutrality and to prevent even the appearance of bias. One major theoretical distinction between mediation and other dispute resolution mechanisms is that, in contrast to litigation or arbitration which looks toward the past to untangle facts and interpret actions, mediation looks to the future. This forward looking approach is intended to resolve a problem rather than to stir up anger, confusion and conflict regarding a past event.

Contemporary Status of Mediation

Today, mediation is becoming increasingly common as the litigation process has become overburdened in our notoriously litigious society. In fact, many commercial contracts specifically prescribe mediation as the preferred method of dispute resolution to avoid unnecessary and excessive costs, delays and exposure to public scrutiny. Mediation is a popular form of dispute resolution in nearly every industry and area of life, from divorce disputes to complex union bargaining processes

Mediation is not right for every situation, it is important to understand the strengths of mediation and the conditions which allow it to be successful. Some of the great advantages of mediation include:

• low cost
• expedient resolution
• confidentiality
• privacy from public and media scrutiny

Some circumstances which make mediation an ideal form of dispute resolution include, where:

• there is no available legal remedy
• an ongoing relationship exists between the parties
• cost is a significant issue
• timely resolution is a factor
• direct negotiations have failed
• where multiple parties are involved

The factors which mitigate against mediation:

• when a party seeks a declarative result (who’s right and who’s wrong)
• when a party wants to punish another party
• when a party desires to send a message to the public, an industry or individual
• where a legal interdict is required to prevent an ongoing or future harm
• when a party refuses to participate in the mediation process

Whats great about being a single mother?  The truth….

My answer: Nothing! and I can say this in all honesty, as I have been through it all.

My first child a daughter, was born out of wedlock, the father not wanting to have anything to do with her until she was 20, and even then that relationship was short lived. So for 10 years I was on my own, no maintenance and minimal support, then I married had a son, and life was good, until my husband died when my son was 4, and I was thrown back into being a single mom.

Now eight years later, how I wish I was divorced. What I would not give to be able to send my kids over to their father every second weekend, or for them to spend half the school holidays with their Dad, I can only imagine all the “ me” time I would have. Not that I do not love my children, but being a mom 24 hours a day, 7 days a week, 365 days a year is not for sissies.

My day starts off at 5.30am, by making school lunches, putting on the washing machine, and getting up and ready and out the front door by 7.30am, I have the privilege of working from home, so now its time to sign onto the computer and start my day, I have already by this time had a telephone call or two, and have at least 5 urgent e-mails awaiting answers, and so the day begins, by the time I have answered all e-mails, assisted people over the phone, and completed what is urgent its past midday and not only have I not had my breakfast, but the kids breakfast plates are still on the dinning room table, the beds have not been made, the washing machine is still full of wet laundry from this morning. So now I take the phone off the hook, in order to grab a quick sandwich, carry the breakfast dishes from the dinning room into the kitchen while eating the sandwich and I unload the washing machine, Hold on what’s that ping, its someone trying to reach me on Skype, so telephone goes back on the hook, and I start answering my Skype messages, oh! And there is a whole bunch of e-mails that have to be answered.

Oops it is now 3pm and my son has just walked through the front door, dropping his suitcase in the passage and politely takes off his school shoes and socks in the lounge, while asking for a sandwich and juice, because he is starving. So phone back off the hook, sandwich made, juice poured and I am back to work, while a little voice is squeaking in the back, that life is so unfair, as he has 30 math sums for homework, as well as some Physics, English and French, and that he needs my help because he also has a project that need to be completed by Friday and lo and behold today is Thursday.

By 4.30pm when I finally decide okay it is  time to end my work day, I begin dinner, and the phone rings, another client asking for a progress report, and I spend at least 15 minutes on the phone while the onions burn black (I have learnt to take the pot off the stove) and I am back at the stove trying to put a nutritious healthy meal together, and supervise the homework at the same time. Dinner is served at 5.45pm and by 6.30pm, we are back to doing homework together, finally if we are lucky homework is completed by 8pm, but hold on we haven’t even begun the project yet, by 10pm, project completed, son in shower and I am making beds, picking up cups and plates from all over the house, while the water in the kitchen sink is over flowing.

Its 10 past 10, children all in bed, and I am starting the dishes, still the floor to sweep and general tiding up to do. Its now just past 11pm, I jump into a shower and I am so hyped up I need to read for at least an hour, before pure exhaustion overtakes, and sends me into a dreamless sleep, only to wake up the next morning at 5.30am to start the whole process over again, weekends are no different, I still have to rise and shine at the crack of dawn to be at the shop at 8am, so that I can be at home  by 10am, to give the kids breakfast, and to do all the cleaning and ironing that was not done during the week.

If I am lucky with my time management I might get a bit of gardening done, although it so neglected, I am starting to refer to it as a country meadow. Saturday night I am lucky if I have enough energy to get through the main movie without falling asleep on the couch. Sunday morning, I have a sleep in until at least 7am, when I have to get up and do all the things I never accomplished on Saturday, that’s besides making a cooked late lunch or braai, and then its getting my son ready for school, making sure the school bag is packed and that all homework is completed, but does it end there no, its time for nails to be cut, ears to be cleaned….hold on what about ME, somewhere in this whole process I have lost me, who am I, when last did I say yes to a date, actually when last did I have the energy to date, how often do I see my friends, my family, 8 years have gone by, and I have lost ME. Who am I, what do I want, I am not sure anymore. What I would not do, to have every second weekend free, or just have some me time during the school holidays, to do the things I enjoy, simple things, like having a bubble bath, sleeping a little later, going out with friends for a glass of wine or a meal, taking a walk along the beach with a friend, or simply beaching myself on the sofa, with a soppy love story book or movie, without having my kids asking, Why are you crying? I want to have time to paint my nails and blow dry my hair.

So, to all you mothers out there, that are thinking, planning and keeping Dads out of your kids lives by making up stories, so that there is no contact, give a thought to who you are really punishing, him or you. Making the wrong choice will put you in your own emotional and mental prison for the next eighteen years, by robbing you of who you really are.

What to do when access is denied -  the role of the police

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Divorce should be the solution to a domestic problem but in reality divorce orders, especially where all issues haven’t been properly addressed, canvassed and resolved, can cause more aggravation than what they solve.

It is common practice to regulate the consequences of a divorce by means of an agreement between the parties by way of a settlement agreement, also called a consent paper in which they agree on matters such as the division of the assets, payment of maintenance, care of and contact to the children and also payment of costs of the proceedings. In terms of the Divorce Act the court may incorporate the spouses’ settlement into a court order if it is in writing. Once the settlement agreement is made an order of court a party may only vary or amend it on application to the court. The parties may do so by mutual consent, it is important to note that any amendment to the settlement agreement should be made an order of court. If one of the parties disagrees to amend or vary the settlement, the aggrieved party may approach the court on application in terms of Section 8 (1) of the Divorce Act for variation or rescission if a particular provision relates to guardianship, custody, access (now care and contact) or maintenance. If the dispute relates to maintenance the maintenance court may be approached in terms of the Maintenance Act.

Other issues that often need to be attended to post-divorce are:

• Fixed property – ownership, registration and transfer issues

• Pension funds –division and other issues

These are issues which the Court will, on Application also assist with.

Remember – If the settlement agreement is not incorporated into the divorce order it is merely a contract and it can therefore not be enforced in the same way as an order of court but is regulated and governed by the law of contract.

Remember too, that it is the Court which made the original order which normally has the required jurisdiction to hear these applications.

UNMARRIED FATHER’S RIGHTS

Much has been spoken about and many debates, in and out of the courts, have been fueled by the question surrounding the rights of the unmarried biological father. Many of these questions have now been settled by the Supreme Court of Appeal (SCA) where it held that  a father of a child born out of marriage, is the holder of full parental responsibilities and rights in terms of section 18 of the Children’s Act .

In this case the child’s mother and father, who is the appellant, were living together at the time of the child’s birth and intended to marry. The mother died shortly after birth. The first and second respondents are the child’s maternal grandparents. Both parties sought sole guardianship and custody of the child. The Court ruled that the child should permanently reside with his father. And  further held that the child’s grandparents have a right to] have regular contact with their grandchild

In terms of the Children’s Act if the father had been living in ‘a permanent life partnership’ at the time of the child’s birth, he would automatically have acquired parental rights and responsibilities.

As far as grandparents’ rights and responsibilities are concerned, section 23 and 24 of the Children’s Act, which govern non-parental rights to care and guardianship came into operation on 1 April 2010. Previously,  grandparents had no inherent rights or responsibilities and  only a high court, as the upper guardian of children could confer access, custody or guardianship on a grandparent. This would be done only if it were in the best interests of the child, but with regard to the rights of the biological parents.

The SCA also clearly stated that in matters regarding minor children the only real issue: what was in the child’s best interests

Lastly, the SCA recorded that the litigation had not been in any of the parties’ interests. The SCA endorsed the views expressed in MB v NB 2010 (3) SA 220 (GSJ) that mediation in family matters is a useful way of avoiding protracted and expensive legal battles, and that litigation should be a last resort.