Navigating the Landscape of Maintenance Claims: A Legal Guide

 Understanding the the nuances of maintenance claims is crucial, as the legal framework differs based on the specific circumstances. This blog post explores the distinct instances where maintenance is claimed, from child to married to divorced spouse.

Maintenance for a Child and a Married Spouse

In the cases of a child and a married spouse, a mutual duty of support exists. For a child, both parents are obligated to provide maintenance based on their respective means, while for a married spouse, this duty is reciprocal during the marriage. The process typically involves approaching the maintenance court to obtain a maintenance order.

The Context of Divorce

In the case of a divorced spouse, maintenance is part of the divorce proceedings, typically claimed through the particulars of claim to the divorce summons. The court maintains discretion, guided by principles like the clean break principle, while considering factors such as financial needs and earning capacity.

The Often Forgotten Topic: Duty of Children to Maintain Parents

In South African law, the principle of reciprocal support is a key component, extending beyond the more common duties. There is an often overlooked duty for children to maintain their parents in certain circumstances. This duty is based on common law and is not bound by the child's age, but rather by the parent's genuine need (indigence) and the child's financial ability to provide, without compromising their own necessities.

How Maintenance Is Claimed

The process for claiming maintenance varies depending on the circumstances. In the case of a divorced spouse, the claim is typically made through the particulars of the divorce summons. For a child or a spouse in an existing marriage, maintenance is usually claimed through an application for a maintenance order brought to the maintenance court. 

Similarly, a parent also approaches the maintenance court to apply for an order. 

Additionally, applications for interim maintenance can also be sought, for a child as well as a spouse, often in terms of Rule 43 of the High Court Rules or Rule 58 of the Magistrates' Court Rules. This is intended to protect a spouse and child from being left destitute by divorce proceedings that take too long to be finalised. Intentionally dragging out proceedings in order to make this kind of application is however an abuse of process and can be met with punitive measures from the Court.

Conclusion: The Imperative of Legal Engagement and Assistance

Regardless of which side of a maintenance dispute you are on, it is never a good idea to avoid the court. If you are the party claiming maintenance, the court assists you in being awarded the amount of maintenance that is appropriate under your circumstances. Conversely, if you are the party against whom a claim is being made, the court can help ensure that you are not unduly exploited and forced to pay more than you can afford.

Discovery in Law

 

I know- to my dismay- that many of you, who have not studied law with the aim of passing exams and getting a degree and who have much less gone through the dehumanizing 2 years of articles, love throwing around your legal opinions and discuss law with us in a social setting.

It annoys me, but I cannot stop it.

I suppose making small talk with a lawyer is difficult for many of you, so the least I can do is make it a bit easier and make you sound a bit less uninformed...

So- today I will teach you the meaning of a word that we use a lot, but what does not mean what you think it does.

So- when you hear the word "discovery"- this is the meaning that you normally attach to it, right?  

In our world, however, it has another meaning. To be honest I do not even bother to use this word when advising my clients as they can very easily end up confused. So- what does it mean?

Well- it means to reveal or make visible and available the evidentiary material other than your word that you intend to use at your trial or hearing to prove your case. Even though lawyers don't associate this term with criminal matters they are quick to ask for the case docket to prepare for trial. They also get the docket because our justice system is against ambushing a party to legal proceedings with evidence of which he was not informed well enough in advance.

In civil proceedings we don't just drop off copies of our supporting documents, photographs or the like, however. We first deliver an affidavit stating under oath what documents and other material we have in our possession that we intend to use. The other party may then ask to inspect any or all of these documents long before a trial date is in sight. 

One good reason for this is that legal proceedings are costly and knowing in advance what evidence is against you helps you decide better on embarking on litigation that can result in you losing a lot of money. This also give you a good idea of how a matter can be settled out of court.

In many instances, though, matters do go on trial and then the litigants on both sides are prepared.

So- next time you hear lawyers talk about discovery you will at least not join in saying that you are also a member...

That's it from me for now. Take care until next time... :)

It is Really That Expensive- My First Trip to the SCA

 

It is that one place where you would expect your lawyer to go the very moment you find that your case was not decided in your favour.

In reality many of us in the legal fraternity have brought appeals to our local divisions of the High Court. Some of us have even gone through with them to finalise them. I can remember how in 2016 the costs of such appeals were estimated at R 20 000 at the outset and then- when you get faced with opposition- you realise that the costs will even go beyond R 60 000 if you want to see it through to the very end.

Recently- after 17 years of being in this profession- I have ended up in the Court that is approached when your appeal or your application for leave to appeal in your local division has failed.

 The Supreme Court of Appeal is situated in Bloemfontein. It has a set of rules and practice directives with which few attorneys outside of Bloemfontein are familiar. In the past only Attorneys and Advocates that were specifically given right of appearance in this Court were allowed to appear in this Court. With the implementation of the Legal Practice Act 28 of 2014, however, all admitted Legal Practitioners (be they Advocates or Attorneys) now have right of appearance here.

Having the right to appear does not automatically make one competent to institute and conduct proceedings in a Court, however. This is where the Bloemfontein correspondent comes in. Correspondent Attorneys are appointed in instances where you have to litigate in a Court that is situated more than 15 kilometers away from you. They are required by law to provide an address within the 15km radius where documents can be delivered to you. They also help with the service and filing of papers on your opponents. In the case of the SCA your correspondent also has to be somebody who is familiar with the rules and procedures of this extraordinary Court and capable of helping you get your matter ready for hearing.

Getting the matter ready for hearing in this court involves indexing and paginating the papers in a certain way, binding them in a set manner and having 7 copies of such bundles available. For this we have appointed a specialist- in addition to our correspondent- who charges R 35 000.00 for this service.

How much does the correspondent charge?

Well... If you are used to seeing legal costs you expect unopposed matters to cost you in the range of 

R 8 000 or so. Your correspondent might charge you about for all the receipt and delivery of documents that they get to do. The Bloemfontein correspondent, however, holds the key to getting your documents accepted by the Court and you being awarded a date for hearing. It involves indexing and paginating, the writing and handing in of letters in a specific form and meetings in person with Registrars. The first invoice from our correspondent for all this was R 80 000.00!

After having them concede that they had no reason to peruse the documents (because yes- if you do not expressly tell them NOT to read your documents they will read them and charge you for that) we managed to get their bill down to R 50 000.

As you can expect- the clients grumbled even about this discounted price.

 Promoting access to the Courts to all in the face of high legal costs has been an issue with which I have been battling since my first day in private practice. I know very well that your average salary earner also needs to avail him/ herself of the Courts, but that they cannot be reasonably expected to pay a deposit of R 20 000 before they get assisted. In the case of the SCA one needs to prepare for costs exceeding 

R 100 000.00. 

Familiarity and the fact that I often do not involve Advocates in my matters have me accepting arrangements for payments in installments, but nobody can afford to have these correspondents work on credit only to have the client disappear when they find that the Court did not find in their favour. 

So- if you want to appeal to the SCA- have at least R 100 000 ready. It simply is that expensive... 

After-Sale Surprises

 

So- you have bought something online and after some weeks of anxiety the package finally shows up, only to find the item damaged and not working...

What can you do? Well- honestly you cannot do much unless you have the resources and time to trace the item's journey all the way from the vendor to you, find the culprit and to compile the chain of evidence that leads to said culprit...

Even though the Consumer Protection gives buyers the right to inspect goods that they intend to buy the reality is that some defects do not show up with the inspection before buying, but reveal themselves after the sale has been concluded. 

Here in South Africa consumer law is rather generous and you have a number of remedies and measures at your disposal with which to prevent or deal with hidden defects or undisclosed costs. It is true that a latent defect or hidden costs will get past one or more of these, but the layers of protection that a consumer enjoys under our law is well-developed and it helps to know how to use each one.

In the order of availability from before the sale is concluded up to when you have become aware of the defect or the undisclosed costs these forms of protection are:

1. Reading the contract and inspecting the goods: In some cases you won't have a physical item to inspect, but reading the fine print presented to you can save you a lot of trouble. Skip though all the nonsense and keep an eye out for clauses making provision for costs of which the amounts are not specified and waivers of liability.

2. The 5 day cooling off period: Yes. You have a time within which you can cancel any agreement that you have entered into without any required reason. The condition, though, is that you have not already used the item that you have bought.

3. Amicable Resolution: Many vendors do not want any bad relations with customers and in many cases you will find that they are indeed willing to take the item back and refund you or to at least provide you with an item that is in proper condition. Just take the time to speak to them.

4. Ombuds and Consumer Tribunal: In the case of motor vehicles we have the Motor Services Industry Ombud and similar ombuds actually exist in respect of a number of suppliers of goods and services. If a specific ombud does not exist in respect of the goods that you have bought you have the Consumer Tribunal at your disposal. These tribunals are more accessible than the Courts and also more informal.

5. Courts of Law: When all else fails we have the Courts. Sure- you can wander the passages yourself and get a confused look from the cleaner when you ask her who to see about suing somebody that sold you a broken air-fryer. You will do much better in this case, though, if you consult with a lawyer.

You have the rights. Just equip yourself to use them...

Saying Goodbye to a Legend

For 4 years I have been blessed with the privilege of having the best secretary in the world.

As it happens, though, she was the best because she was meant for far greater things...

Jacqueline Keck took the risk with me during April 2023 to resign from our workplace to start this practice in Sonpark Centre. Her support, hard work and motivation were most of the reasons why we were able to not only start,  but stay open up to now.

Her actual qualifications were, however, severely under-utilized with this practice and it was only a matter of time until she was to leave us to work to her full potential.

Clients will remember Ms Keck as a radiant, professional and helpful face of the practice who always had time to listen.

I will remember her as a trusted comrade and partner as well as a loyal employee who went beyond the call of duty to help this firm in its business.

Thelus International has now gained a valuable asset among its staff.

I want to end off this post by thanking Ms Keck for the legacy that she has left  behind with us and wish her all of the best for the great things she is yet to achieve.