Does an illegitimate child have a claim against his late father’s estate?

A client asked: “I am an illegitimate child and my father passed away. Can I claim from his estate”? 

In South Africa, the rights of illegitimate children have been protected and recognized by the law. The Children's Act of 2005 abolished the legal distinctions between legitimate and illegitimate children, ensuring that all children are treated equally in terms of inheritance rights. 

If his father passed away and he is his illegitimate child, he has the right to claim from his father’s estate, in these circumstances. 

If the father left a will and included the client as a beneficiary or legatee in the will, he would have a valid claim to the inheritance specified in the document. 

However, if he was excluded from the will or the deceased died without a will, the client may still have a claim against the estate. South African law recognizes the principle of "adequate provision," which means that if he can show that he was financially dependent on his father or that he had an obligation to maintain him, the client may be entitled to claim from the estate. 

If paternity is in dispute, the client must provide evidence that the deceased was the father, such as DNA testing or any other relevant documentation. It is advisable to consult with a lawyer who specializes in estate law or inheritance matters to understand the specific legal options available. 

It's important to note that laws and regulations can change over time, and it's always best to consult with a legal professional who can provide you with the most up-to-date and accurate information based on your specific situation.

Claiming dependants' benefits at UIF

 

Following the death of a contributor to the Unemployment Insurance Fund (UIF), you can claim the dependant’s benefits from the UIF, if you are a:

• spouse
• life partner
• guardian
• child of the deceased contributor.

You must apply within six months of the death of the contributor. Dependent children under the age of 21 years are entitled to benefits if there is no surviving spouse or life partner.

Find out more about claiming UIF dependants’ benefits or contact the UIF.

Can a fixed-term employee whose dismissal is found to be unfair request reinstatement as a remedy?

 

By Sharusha Moodley, Bregman Moodley Inc Attorneys

According to Section 193(1) of the Labour Relations Act 66 of 1995 (LRA), once a dismissal is found to be unfair, an arbitrator may order reinstatement, re-employment, or compensation for the employee. However, there are certain conditions that must be considered. 

Section 193 of the LRA outlines the circumstances under which reinstatement may not be required. These include:

a.    The employee does not wish to be reinstated,

b.    The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable,

c.     It is not reasonably practicable for the employer to reinstate or re-employ the employee, or

d.    The dismissal is unfair only because the employer did not follow a fair procedure. 

In the case of Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (DA6/2021) [2023] ZALAC 5 (14 February 2023), the arbitrator found the dismissal of an employee to be substantively unfair and ordered the employer to pay compensation. However, since the employee was on a fixed-term contract that had already expired at the time of the dismissal, the arbitrator was legally unable to order reinstatement. 

The employee challenged the arbitrator's decision on appeal, arguing for reinstatement instead of compensation. However, the Labour Appeal Court held that reinstatement was not a competent remedy in this case because the fixed-term contract had already expired and was not in existence at the time of the dismissal. The court clarified that reinstatement is a remedy for unfair dismissal only when the contract of employment is still in effect at the time of the order. 

Therefore, if an employee's fixed-term contract has expired before an arbitrator's finding of unfair dismissal, reinstatement is not a viable remedy. In such cases, the arbitrator is obligated to order payment of compensation as the appropriate remedy under Section 193(1) of the LRA.