The Role and Impact of Parenting Plans in South African Law

 

Introduction

Parenting plans are a key tool in South African family law, designed to protect children’s well-being when their parents separate. These plans are based on sections 33 to 35 of the Children’s Act 38 of 2005 and are meant to ensure that both parents work together to take care of their child, always keeping the child’s best interests in mind. The plans help parents manage their responsibilities through mediation and legal processes, offering a flexible yet structured way to deal with access and other issues.

Legal Background

Children’s Act Overview

The Children’s Act 38 of 2005 provides the legal foundation for creating and using parenting plans. Since April 2010, parents who separate (whether married or unmarried) are encouraged to agree on a plan that outlines how they will share their parental duties.

Section 33: Agreement Details

According to section 33(1), parents who share parental responsibilities must come up with a parenting plan that explains how they will fulfil their duties toward their child. If they can’t agree, section 33(2) suggests they should first try to work it out through a parenting plan before going to court.

These plans can cover important issues like:

• Where the child will live
• Child maintenance
• How and when the child will have contact with each parent and other important people
• Decisions about education and religious upbringing

The plan must always prioritize the child’s best interests, as outlined in section 7 of the Act and supported by the Constitution. This includes considering the child’s physical, emotional, and developmental needs.

Section 34: Legal Requirements

For a parenting plan to be legally valid, section 34 requires it to be in writing and signed by both parents. It also needs to be registered with a family advocate or approved by the court to be enforceable.

Mediation and Professional Help

Section 33(5) emphasizes the importance of mediation. It requires parents to work with professionals like family advocates, social workers, or psychologists to help them create a plan that focuses on the child’s well-being.

Link to Chapter 28 of the Constitution

 

Chapter 28 of the South African Constitution stresses that a child’s best interests must come first in all decisions affecting them. Parenting plans, as outlined in the Children’s Act, put this constitutional principle into practice by ensuring a stable environment for children during parental separation.

Best Interests of the Child

Both the Constitution and the Children’s Act focus on ensuring that parenting plans are designed with the child’s best interests in mind. Section 7 of the Act lists several factors that should be considered, such as:

• The child’s emotional and psychological security
• The need for stability in their relationships and environment
• Protecting the child from harm, neglect, or abuse

By considering these factors, parenting plans aim to ensure both legal clarity and the child’s overall well-being.

Conclusion

Parenting plans, as set out in the Children’s Act, are an important step forward in handling parental responsibilities and ensuring child welfare during separations. They encourage parents to work together in a structured way that focuses on the child’s best interests, as required by the Constitution.

Mediation plays a crucial role in helping parents create these agreements, making sure that the child’s needs are always the top priority. These plans not only resolve disputes between parents but also provide stability and support for children during family changes, reflecting the legal and social progress in protecting children’s rights.

 

Can You Sell Property You Don’t Own? Insights from Koster v Norval and the Deeds Registries Act.

Introduction

Can someone legally sell property if they are not the owner? This is a key question in South African law that was addressed in the Supreme Court of Appeal case Koster v Norval (20609/14) [2015] ZASCA 185. The court clarified the conditions under which such a transaction could be valid, challenging the assumption that only owners can sell property. Additionally, Section 96 of the Deeds Registries Act 47 of 1937 provides a legal mechanism to facilitate such sales, allowing for the simultaneous registration of property transfers. This summary unpacks the court’s decision and explains the legal framework that governs sales where ownership has not yet been transferred.

The Court’s Decision in Koster v Norval

The Supreme Court of Appeal in Koster v Norval was asked to consider whether a person who is not the registered owner of a property can sell that property. In its ruling, the court confirmed that it is not an essential legal requirement that the seller must be the owner of the property at the time of the sale agreement. Instead, the court focused on the principle of intention and the legal process of transferring ownership, which can occur after the sale agreement is signed.

Key Legal Principle: "Real Agreement"

At the heart of the court's reasoning was the concept of a "real agreement" in property law, which refers to the mutual intention of both the seller and the buyer to transfer and receive ownership, respectively. As long as both parties agree on the transfer of ownership, and the correct legal procedures are followed to register the transfer, the sale can be valid—even if the seller does not own the property at the time of the sale agreement.

The court emphasized that what ultimately matters is the registration of the property transfer in the Deeds Registry. Until the property is registered in the buyer’s name, ownership remains with the seller or the current registered owner. However, if the seller later acquires ownership and registers it in the Deeds Registry, the sale can be finalized without any legal issues.

Simultaneous Registration: The Practical Solution

The Koster v Norval decision also highlighted the practical importance of simultaneous registration. This means that the property transfer from the current owner to the seller, and from the seller to the buyer, can occur at the same time in the Deeds Registry. This resolves any potential legal issues caused by the fact that the seller was not the owner when the sale agreement was signed.

The Deeds Registries Act and Section 96

Statutory Framework for Registration

Section 96 of the Deeds Registries Act 47 of 1937 provides the legal foundation for the simultaneous registration of property transfers. This section addresses situations where a person who is not yet the registered owner enters into a sale agreement. The Act allows for multiple transactions, such as the transfer of property from the original owner to the seller and from the seller to the buyer, to be registered simultaneously, ensuring that all parties involved receive legal ownership at the same time.

How Section 96 Works

Section 96(1) specifies that when a deed or document required to be executed by the owner of immovable property has been executed by a person who has the right to receive transfer of the property, it will be treated as if it had been executed by the owner once that person receives transfer. This provision allows the sale of property before ownership is transferred to the seller, provided the transfers are registered simultaneously.

Additionally, Section 96(3) explains that all endorsements in a batch of interdependent transactions are considered to have been effected simultaneously, regardless of when each individual endorsement is signed by the registrar. This ensures that the transfer of ownership from one party to the next is legally synchronized, avoiding gaps in ownership.

Conclusion

The Supreme Court of Appeal's decision in Koster v Norval, when read alongside Section 96 of the Deeds Registries Act, confirms that it is legally possible to sell immovable property before the seller becomes the registered owner. The key conditions are:

1. The mutual intention of both the seller and the buyer to transfer and receive ownership.
2. Simultaneous registration of both the transfer to the seller and the transfer to the buyer in the Deeds Registry.

This ruling allows for flexibility in property transactions while ensuring that ownership is transferred in a legally sound manner. In conclusion, the law recognizes that the sale of immovable property can precede the seller’s acquisition of ownership, as long as the proper procedures for registration are followed.