I want to live with Dad, Mom

A client asked: At what age can the child legally decide for themselves whether they want to maintain contact with the other parent?

Answer: There is no set age in South African Law where a child under 18 can make a decision. The Children's Act 38 of 2005 states that if the court is convinced that the child is of sufficient maturity to make his own choice and not, for instance, be influenced by his parents in his choice, the court will take his choice into consideration.

In deciding whether to take the child’s wishes into account, the court looks at age, maturity and stage of development, gender, background and any other relevant characteristics of the child.

Section 10 of the Children's Act ([a38y2005s10] dealing with child participation) provides that: “Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration”.

The factors taken into account include (but are not limited to):

·         The child’s age

·         The child’s sex

·         The amount of contact the child has had with each parent throughout their life.

·         The historical record of how each parent has fulfilled a parental role (the amount of love shown, as well as any history of cruelty or neglect on behalf of one of the parents).

·         The child’s own testimony.

·         The child’s sense of being wanted and being kept secure.

·         The emotional, physical, moral, and religious well-being of the child.

·         The accommodation and environment each parent is able to offer for the child, including the educational facilities available.

In special circumstances, a court may consider a child as young as 10 years old sufficiently mature enough to meaningfully contribute to decisions about her welfare. 

The over-riding factor is the best interests of the Child. NOT the child's decision.

The test is set out in section 9 of the Act (best interests of child paramount): “In all matters concerning the care, protection and well-being of a child the standard that the child's best interest is of paramount importance, must be applied”.

Here’s a very useful article on participation:

http://children.pan.org.za/sites/default/files/publicationdocuments/Children%27s%20participation%20Topical%20guide.pdf

Overseas assets and your will

If you have offshore assets, it’s a good idea to have separate wills, one for your assets in South Africa, and the other/s for assets in each country where you have assets overseas.

Your local will should provide something like ‘What follows applies to my South African assets only’ or ‘This will deals only with my South African assets.  Should I have any non-South African assets, these will be dealt with in a separate will’.

It’s unlikely that a local attorney will have the necessary expertise to advise you about the requirements of the every country where your foreign assets may be located, so always seek expert local advice regarding appropriate offshore tax and estate planning requirements and advantages.

For example, in some countries there are inheritance laws that override the intentions of the deceased – requiring that a certain part of the deceased’s estate be left to certain specified relatives.

The separate wills will be administered, simultaneously, in accordance with South African law and the appropriate law pertaining to your offshore will. The two wills work in parallel – one for the bulk of your estate in SA one for your foreign assets. 

How lawful was it for the State Security Agency to use a device that jammed mobile telecommunication signals in Parliament?

This interesting point was argued in Primedia Broadcasting, A Division of Primedia (Pty) Limited and others v Speaker of the National Assembly and others 

Events which occurred during the 2015 State of the Nation Address (“SONA”) were at the heart of the present matter. The State Security Agency employed a device that jams mobile telecommunication signals. Consequently journalists and MPs attending SONA were rendered unable to use their cellphones in order to inform members of the public not in attendance about the happenings in Parliament. It was also averred by the applicants in this matter that members of the public were denied the right to see for themselves events of national importance occurring on the floor of the Parliamentary Chamber when the following took place.

The applicants challenged the constitutional validity of paragraph 8.3.3.2 (a) of Parliament’s Policy on Filming and Broadcasting (“the Policy”) and raised the question of whether any order was to be made regarding the jamming incident that occurred shortly before the SONA. The premise of Primedia’s  case was that all South Africans have a right to know what happens in Parliament and that includes a right to see and hear for themselves disruptions by members of Parliament.

Held that the provisions of sections 57 (1) and 70 (1) of the Constitution of the Republic of South Africa, 1996, empower Parliament to make rules and orders concerning its business. The various rules and policies adopted and approved by Parliament are essential for its ordered operation. There is no obligation on Parliament to broadcast conduct that clearly obstructs or disrupts its proceedings and conduct that unreasonably impairs its ability to conduct its business in an orderly and regular manner acceptable in a democratic society because such conduct is not legitimate Parliamentary business. Thus, the challenge levelled against the policy had to fail.

The Court then considered the request for a declaration that the use of the jamming device at SONA was unlawful. Section 12 of the Intelligence Services Act 65 of 2002 provides the authority for the acquisition and use of signal disruptor devices by the State Security Agency. The Court could not deny the agency the use of the devices when circumstances demanded same to be used in order to counter any threat or potential threat to national security.

To succeed the applicants needed to show that Parliament’s determination regarding televising of gross disorder and unparliamentary conduct was unreasonable. They failed to do that. The majority of the court therefore dismissed the application.

Must a pension fund give effect to the wishes of the deceased?

The issue before the court was who a pension fund must pay the death benefits to. In a beneficiary nomination form, the deceased nominated only his mother and his daughter. The guardian of the child (Tsele, the complainant) objected to the fact that the pension fund administrators ignored the wishes of the deceased and appointed his brothers as additional beneficiaries.

The Pension Funds Adjudicator was called upon to make this decision in Tsele v Bidvest South Africa Retirement Fund and another, before the Pension Funds Tribunal.

Mini Summary:

The payment of a death benefit was at the centre of the present complaint to the Pension Funds Adjudicator. The complainant was the mother of a child fathered by a member of the Bidvest’s pension fund. Upon the death of the member, the fund decided to allocate the death benefit payable amongst the two brothers of the deceased, and the complainant’s child.

According to the complainant, the only nominated beneficiaries of the deceased were his mother and his daughter. The complainant contended that as the deceased’s mother had died, the deceased’s daughter should be his only beneficiary. She also complained that despite her having informed the fund that the brothers of the deceased had successful careers, the fund failed to investigate that.

Held that the issue to be determined was whether or not the board of management of the first respondent carried out its duties in terms of section 37C of the Pension Funds Act 24 of 1956.

Section 37C of the act governs the disposition of death benefits. It places a duty on the board of management to identify the beneficiaries of a deceased member and also vests the board with discretionary powers on the proportions and manner of distributing the proceeds of a death benefit. As with the exercise of any discretionary power, in effecting an equitable distribution the board is required to give proper consideration to relevant factors and exclude irrelevant ones from consideration. The board of management may not unduly fetter its discretion by following a rigid policy that takes no account of the personal circumstances of each beneficiary and of the prevailing situation. When making an “equitable distribution” amongst dependants the board of management has to consider the age of the dependants; the relationship with the deceased; the extent of dependency; the wishes of the deceased placed either in the nomination form and / or his last will; and the financial affairs of the dependants including their future earning capacity potential.

Although the deceased completed a beneficiary nomination form, the nomination form serves merely as a guide to assist the board in the exercise of its discretion. The fund’s task in distributing a death benefit in terms of section 37C of the act is to identify all the potential beneficiaries. The board is vested with discretionary powers to decide on an equitable distribution of the death benefit. It is only in cases where it has exercised its powers unreasonably and improperly or unduly fettered the exercise thereof, that its decision can be reviewed.

The adjudicator found that the board of the fund erred in relying solely on affidavits provided by the deceased’s brothers, stating that they were unemployed. The fund fell short of complying with its duty to conduct a proper investigation, and its decision was set aside.

Can I claim the costs of hiring a car, after an accident that was not my fault?

Q

Regarding a recent motor vehicle accident, my vehicle has sustained a considerable amount of damage, in an accident caused (and admitted to) by a party driving on duty for his company, within a company vehicle. The vehicle will take 30 days plus to repair, and although all cost for the repairs are being paid from his insurers, the inconvenience of not having a motor vehicle for more than a month surely should hold some form of damage claim. Would you advise that there are grounds for a damages claim in this regard, specifically since the driver of the said company vehicle has admitted guilt in the police report?

A

In respect of a claim for damages, there is only one function: to restore the plaintiff's ‘patrimony’ and, as far as possible, to place him in the position he would have been in had the collision not happened. Money is considered an adequate replacement for the lost patrimony.

In my opinion, you’d be wasting your time trying to pursue a claim to compensate you for inconvenience, discomfort or annoyance (in the form of the cost of hiring a hire vehicle). In any event, even if you had such a right, you would spend far more on engaging the services of a lawyer than the cost of hiring the vehicle.