Upholding the Rule of Law:
At the heart of any democratic society lies the rule of law. Lawyers act as the guardians of this principle by ensuring its proper implementation. They interpret and apply laws, ensuring that individuals, organizations, and even governments are held accountable for their actions. Lawyers help maintain social order and fairness by representing clients in court, facilitating dispute resolution, and working to achieve justice for all.

Safeguarding Individual Rights:
Individual rights are the cornerstone of a just society. Lawyers play a critical role in safeguarding these rights, protecting individuals from unjust treatment, discrimination, and abuse. Whether it is defending the accused, advocating for victims, or representing marginalized groups, lawyers act as advocates and defenders of justice, ensuring that everyone has a fair chance to be heard and receive a fair outcome.

Providing Legal Advice and Guidance:
Legal matters can be complex and overwhelming for the average person. Lawyers possess the expertise to navigate the intricacies of the legal system, providing essential advice and guidance. They help individuals and businesses understand their rights, obligations, and legal options. From drafting contracts and negotiating settlements to offering counsel on various legal issues, lawyers play a crucial role in preventing legal pitfalls and ensuring compliance with the law.

Facilitating Access to Justice:
Access to justice is a fundamental right that should be available to all members of society. However, legal procedures can be complex and expensive, making it difficult for many individuals to navigate the system. Lawyers bridge this gap by offering legal aid, pro bono services, and representing those who cannot afford legal representation. They work towards creating a more equitable society by ensuring that legal services are accessible to everyone, regardless of their financial means.

Shaping Legislation and Policy:
Lawyers are actively involved in shaping legislation and policy at local, national, and international levels. Through their expertise, lawyers provide insights into the legal implications of proposed laws, ensuring they align with the principles of justice and fairness. They advocate for legal reforms, influence policy decisions, and work towards creating a legal framework that addresses the evolving needs of society.

Resolving Disputes and Promoting Mediation:
Litigation is not the only path to resolving disputes. Lawyers are skilled in alternative dispute resolution methods, such as mediation and arbitration. By facilitating negotiation and settlement discussions, lawyers help parties find mutually acceptable solutions, reducing the burden on courts and promoting a more collaborative approach to conflict resolution.

Conclusion:
Lawyers are indispensable pillars of any legal system, serving as advocates, advisors, and guardians of justice. They uphold the rule of law, safeguard individual rights, provide legal guidance, and contribute to the development of legislation and policy. Their efforts foster a more equitable society, ensuring that justice is accessible to all. The importance of lawyers cannot be overstated, as they play a vital role in preserving the principles of fairness, upholding the rights of individuals, and maintaining the integrity of the legal system.

It is important to note that running a business is for the most part a one-man show, until you have reached a point where you are able to employ likeminded individuals to assist you in pursuing your vision for the business. From the outset, it is pivotal to acquire the services of a legal practitioner and to maintain a good relationship with your legal practitioner as they can serve multiple purposes within your business. These purposes will be discussed herein below.

1.LEGAL COMPLIANCE:

This is important for any business to stay within the parameters of the law, by-laws and regulations. This would assist to remain compliant with any relevant laws, by-laws and regulations and to protect the business’s interests long-term. Therefore, it would be important to know and to understand the applicable laws and regulations for the particular business. This can help to ensure that the business is not found to be in contravention of any laws, by-laws and/or regulations, which could result in costly fines, legal action, and other penalties.

2.LEGAL ADVICE

Additionally, legal practitioners can provide valuable advice regarding any legal requirements that may be applicable to your business. They can also provide advice on how to best comply with those legal requirements and/or regulations. As South Africa’s legislation is constantly evolving and updated through case law and various journals, a legal practitioner assists a business to stay informed about any changes that may occur in the future. Lastly, a legal practitioner would be able to assist you in making informed decisions on your daily business operations.

3.LABOUR RELATED MATTERS

When running a business, you are ultimately tasked with the opportunity to create employment, which may have certain detrimental consequences should you not ensure proper compliance with the various Labour related legislation within South Africa, namely Labour Relations Act, Basic Conditions of Employment Act and Consumer Protection Act. A legal practitioner is able to provide the necessary guidance on internal remedies which need to be followed before dismissing an employee and prevent any further legal action being taken against the business. A legal practitioner will not only ensure that your interests as a business is being protected but also provide guidance on labour or employer-employee relationships when disputes and/or conflicts arise within the working environment.

4.DRAFTING AND REVIEWING OF CONTRACTS

One of the most common mistakes businesses and/or individuals make is not properly perusing certain contracts and not ensuring the proper drafting of contracts. A legal practitioner would assist with ensuring the certainty and security when concluding your contracts and that the contract is abiding with the South African Contract Law. Furthermore, a legal practitioner can assist with the interpretation of the different legal principles that might impact on business operations, which further helps you to maintain up to date contracts that are reviewed to align with the ever-changing law.

5.PROTECTION OF CERTAIN INTELLECTUAL PROPERTY

When starting a business, there are certain intellectual property which goes with it. Furthermore, the business must register with the Companies and Intellectual Property Commission (CIPC). Legal practitioners are able to assist in the registration and more importantly, the protection of your intellectual property by enforcing your rights and ensuring compliance with the complex legal requirements, not only nationally but also internationally.

6.LEGAL REPRESENTATION

Dealing with the law can be tricky and stressful so, your legal practitioners would provide representation for future legal action as well as to provide legal guidance on how to navigate the law or any other legal aspects that may arise.

Therefore, the role that a legal practitioner would provide is one that is multifaceted and important for various reasons even, in a business setting. To stay on top of legal regulations, a legal practitioners would assist to ensure that your business has complied with the laws and bylaws of the country.

No matter what, or how, people choose to form a bond of marriage, marriage is always a legal affair that carries legal consequences. Consequently, South Africa’s laws have been developed to protect both civil and customary marriages, as long as customary marriages follow the specific requirements set out in the Customary Marriages Act 120 of 1998

What is a Customary Marriage?

A customary marriage is a marriage that is entered into according to the customs, traditions, celebrations, and negotiations of indigenous African people in South Africa, as set out in the Customary Marriages Act 120 of 1998.

Often, the wedding celebrations only take place after certain cultural requirements are negotiated and settled (in part or in full), this would usually be in the case of the payment of lobola. While paying lobola is essential, it is also important that the necessary traditional rituals and celebrations take place as soon as possible. An agreement or payment of lobola is not a legal requirement for a customary marriage to be valid. What would classify the marriage as legal would entail registering the marriage at Home Affairs. From a legal perspective, this is critical because should the couple get divorced or a spouse passes away and the marriage is not registered, it could be challenging to prove that the couple is legally married. This is where the Recognition of Customary Marriages Act is an important part of the law that protects and represents customary marriages.

The Recognition of Customary Marriages Act 120 of 1998

The Recognition of Customary Marriages Act introduced equality between husband and wife into the marriage. Both monogamous and polygynous customary marriages are recognised as a legal marriage under the Act. This law aims to correct the past discrimination against African women by officially recognising all African customary marriages in South Africa. It gives women in customary law marriages the same status and protection as women in civil law marriages.

The Act also states that the offering of lobola is not a prerequisite for there to be a valid customary marriage. Therefore, according to the Act, a customary marriage must be dissolved in the same way as a normal civil marriage upon divorce. The union must prove to the court that the marriage has dissolved.

Furthermore, the Act recognizes that all customary marriages are regarded as marriages in community of property unless the couple had taken out an antenuptial agreement before the marriage. Community of property means that if a couple divorces, their joint estate is divided equally between them. This means that all the assets and debts are equally shared.

However, the Act is silent as to whether lobola can be refunded or not in the case of a divorce. In some divorce cases, it has been concluded that a claim for a refund of lobola remains a competent claim, despite it not being provided for in either the Divorce Act or the Recognition of Customary Marriages Act. It can also be said that lobola can be returned if the couple breaks up.

However, in respect of the return of lobola, this may only apply under certain conditions:

•If the man is responsible for the break-up, the lobola does not have to be returned.

•If the woman is responsible for the break-up, the lobola has to be returned.

•If the break-up is mutual or both the man and the woman are responsible for the break-up, an agreement can be reached between the two families in respect of the return of the lobola.

Furthermore, it can also be found that if the husband wants to reclaim lobola during a divorce, the person to whom the lobola was given (such as the woman’s father or mother) must also be brought to court, as the claim will be against that person. In certain traditions, if a couple part ways, then the rules do not allow a man who didn’t break the breach of promise to get back the lobola he had paid. Lastly, if a man breaches his promise of marriage, it could be held against him, and he won’t get his money back.

Therefore, irrespective of the type of marriage, it still remains important to put everything down on paper or to consult with a legal representative on how to navigate the union to avoid any risk of financial and material losses.

For further reading on the abovementioned act, please visit the following site:

https://www.justice.gov.za/legislation/acts/1998-120.pdf

What is a Family Advocate?

The Family Advocate is an unbiased family law specialist and advisor who provides mediation during legal disputes such as divorce proceedings. Their role is to assist in reaching an agreement on disputed issues, namely parental rights, care, contact, and guardianship of a child. If the parents are unable to reach an agreement, the family advocate evaluates the circumstances, keeping in mind the best interests of the child, and makes a recommendation to the court regarding the care, contact or guardianship. The legislative mandate of a family advocate is governed by Section 28(2) of the Constitution.

The office of the Family Advocate also drafts parenting plans, conducts child psychological evaluations with the social workers, and mediates between families where the welfare of the child is at stake.

The Functions of the Family Advocate

The functions of the family advocate are governed according to the Mediation in Certain Divorce Matters Act, 1987 (Act 24 of 1987). The family advocate is also expected to make their services available to the public free of charge.

Any divorce settlement agreements or parenting plans in which minor children are involved, should also be endorsed by a family advocate prior to a divorce being granted, to indicate to the court that the parental plan and/or settlement is in fact in the best interests of the minor child.

The functions of the family advocate are:

•To furnish the court with a report that includes recommendations of the welfare of a minor child concerning any matters relating to family law.

•To appear at the trial or hearing of any relevant application.

•To provide mediation to parents who cannot agree on their rights and responsibilities relating to the child or children.

•To adduce any available evidence.

•To place or register a Parenting Plan already agreed upon by the parents.

•To provide assistance in order to ensure that a Parenting Plan being agreed upon will be in the best interests of the child.

•To cross-examine witnesses giving evidence at the trial or hearing of an application.

•To provide legal information to parents who wish to know more about their rights and responsibilities relating to their children.



The Benefits of the Family Advocate

•The Family Advocate can amend or terminate parental rights and responsibilities agreements registered by the Family Advocate’s office. This means that parents do not have to go to court if they want to amend the agreement when the need arises.

•In the process of consulting, if an agreement is reached on disputed issues the matter does not proceed to trial, thereby saving legal costs and time.

•The reports and recommendations that the family advocate will provide the Court will increase the chances of a decree of divorce being granted.

•A Family Advocate will provide the child a chance to be heard regarding their position in the parties’ divorce or separation.

•The Family Advocate is a neutral person who focuses solely on the best interests of the child.

•Therefore, the atmosphere at the Office of the Family Advocate is also less rigid and intimidating compared to that of a courtroom. It provides a space that is relatively child friendly.

•The Family Advocate uses techniques of alternate dispute resolution, which helps to reduce the tension between the parties.

•The Family Advocate may work in liaison with other professionals (example social workers, psychologists, psychiatrists, therapists), in assisting the family and to ascertain what is in the best interests of the child.



The office of the Family Advocate gives the child an opportunity to be heard with regard to their position in a pending divorce. They always consider the child’s best interests when concluding their decisions. Therefore, a family advocate plays a pivotal role in ensuring that the voice of the child is heard.

For further reading on the abovementioned act, please visit the following site:

https://www.gov.za/sites/default/files/gcis_document/201503/act-24-1987.pdf

However, in the case of divorce, separation, familial discord, or religious affairs, upholding the best interests of the child may not always be respected and maintained. Therefore, in a familial case where one aims to ensure healthy development and protection of a child’s well-being, one can apply to the Children’s Court for assistance and obtain an order regulating certain aspects.

This can be any person who has an interest in the care, well-being, or development of a child who may then apply to the High Court, a divorce court for divorce matters, or the children’s court for an order granting the application on conditions that the court may deem necessary such as, contact with the child or care of the child.

1.Understanding the Parental Responsibilities and Rights

A person may have either full or specific parental responsibilities and rights in respect of a child. These responsibilities would include caring for the child, maintaining contact, acting as a guardian or contributing towards the maintenance of the child. Any person who has rights and responsibilities over a specific minor child, or a person requesting to be awarded rights and responsibilities, may approach the children’s court.

The biological mother holds full responsibilities and rights of the child while the biological father also holds full responsibilities and rights given that he has been present within the child’s life, such as at the time of conception, birth or anytime between the child’s conception and birth.

For unmarried fathers, they also retain the full responsibilities and rights of the child. However, this applies under certain conditions, such as if he resided with the biological mother at the time of the child’s birth or regardless of the latter, he consents to being identified as the father, he has contributed or has attempted to contribute in good faith towards the child’s upbringing.

2.The Process to gain Access to the Child

In order to gain access to contact or to care for the child, one can apply to the High Court for a court order. When the court considers the application, they will always take into account the best interests of the child. Furthermore, they will consider the relationship between the applicant and the child, and the degree of commitment shown towards the child.

When applying to the children’s court you will need to complete a form 2 (J767) and attach the necessary supporting documents. This form will need to set out the relevant circumstances which led to the application and the court will set the application down for hearing on a specified date where both parties will need to be present.





3.Maintenance & Contribution Orders

In the case of ensuring that the child is taken care of, courts will determine the aspect of maintenance. Maintenance is the obligation to provide another person, for example, a minor, with housing, food, clothing, education, and medical care, or with the means that are necessary for providing the person with these essentials. The biological parents, and/or legal guardian of the child are legally obligated to pay maintenance. Should the person ordered to pay maintenance default in terms of making payments towards the child, one can approach the court for a contribution order. Furthermore, failing to pay maintenance is a criminal offence.

The Court may make a contribution order against a person for the maintenance of their child if the child is brought before the Court for inquiry. This means that a defaulting parent can be ordered to contribute a sum of money or a recurrent sum of money to the support of their child if that child has been removed from their care.

The contribution order works in the same way as a maintenance order, and the court can direct the defaulter’s employer deduct the maintenance amount from the wages or from the proceeds from the sale of property.

Therefore, if you are considering approaching the court with regards to a matter that involves a child, it is advised to first seek legal advice from a legal practitioner who has knowledge and experience with Family Law.

For further reading on the abovementioned act, please visit the following site:

https://www.justice.gov.za/legislation/acts/2005-038%20childrensact.pdf

School bullying is a type of bullying that consists of either inside or outside of the school. Bullying can be physical, verbal, emotional, or even psychological which is repeated over a period of time.

Bullying can be defined as any abuse of actual or perceived power that targets minors. Examples of bullying can include physical attacks, purposeful alienation, spreading of false rumours, verbal abuse, and various forms of emotional mistreatment. It can also assist of cyber-bullying.

The South African Legal Framework

How can the law protect children against bullying in South Africa? South Africa has legislative frameworks that one can refer to for guidance on the protection and prevention of bullying. However, the framework can be vast and complex, often overlapping and causing confusion.

To provide an understanding that is streamlined, there are four standout laws together the Constitution and Bill of Rights that protects children’s rights against bullying.

•Bill of Rights Chapter 2, Section 7-39 – In a case of bullying, the first right which is often violated is the victim’s right to equality. This ranges from the victim’s height, weight, age, race, gender etc. In a bullying incident, the victim’s dignity is at further risk which is not only a right but a constitutional value. Section 12 of the Constitution speaks to the protection against violence, torture, and cruel and inhumane treatment. This section would then automatically include the protection of learners against bullying. Furthermore, every individual is afforded the right to control over his or her body and security and freedom of their person thus, protecting their integrity. One’s right to privacy and to not have their person searched or communication infringed upon is also related to one’s identity, which influences their sense of self. An example of this would be if the bully were to gain access to the victim’s cell phone and acquaints themselves with the information. This would constitute a direct infringement. Children are afforded special and additional constitutional protection through section 28 of the Constitution. It is explicitly stated in section 28(1)(d) that children have the right to be protected against maltreatment, neglect, abuse and degradation. Therefore, this would hinder a child’s ability to develop and learn. Lastly, the right to education is an important fundamental human right because it promotes the exercise and enjoyment of other fundamental rights. Bullying in the education context has severe consequences which adversely affect all those involved. This means that it will negatively impact on a learner's academic performance, which goes against the essence of section 29.



•The South African Schools Act 84 of 1996 (SASA) – This law places the responsibility on public schools to compile a code of conduct, which the institution must enforce. The purpose of this is to ensure that specific procedures are in place to manage cases that involve bullying with appropriate punishment.



•The Children’s Act 38 of 2005 – This Act aims to protect children against abuse and neglect and thus, support the eradication of bullying in schools. However, the aim is not to punish a bully but rather to focus on restorative justice through specific programmes and processes. Therefore, the bully will be held accountable for their actions and in some cases, with the SASA, the particular school can be held liable for any damage, injury of loss suffered by a learner in a public school. This Act gives South African children the right to then bring their case of bullying to court.



•The Child Justice Act 75 of 2008 – Following on from the Children’s Act, the Child Justice Act also supports the notion of restorative justice. This aspect of the law recognizes that bullying cases can also contain a criminal element. Therefore, a separate criminal justice system for children has been outlined according to this Act, which also considers whether or not the perpetrator has the criminal capacity to appreciate the wrongfulness of their act or to act in accordance with that appreciation.



•The Protection from Harassment Act 17 of 2011 – This is the latest piece of the South African legislation that protects and enforces the rights of victims of bullying. The Act sets out its purpose to ensure further protection for those who are victims of bullying. These learners can now apply for a protection order against their perpetrator. The amendment to the Act also includes that a child may apply for the protection order without the assistance of a parent or legal guardian. If issued, and depending on the court, the bully can also be instructed to attend therapy for rehabilitation and to prevent future offences.

How to Protect your Child

If your child is being bullied inside or outside of school in a manner that constitutes a criminal element, then your child can go to their nearest police station to report the crime, whereby a criminal charge can be brought against the bully.

At the police station, you can further apply for a protection order by making an affidavit and completing the application (form 4), or you can go to the nearest Magistrates Court.

The documents must be handed to the clerk at the court, and the court will decide if there is sufficient evidence to issue an interim protection order. If so, it will only come into effect once the respondent has received the order.

Furthermore, it is advised to seek legal advice from a Family Advocate who can assist with the procedures and representation of the case.

For further reading on the abovementioned acts, please visit the following sites:

https://www.justice.gov.za/constitution/chp02.html

https://www.gov.za/sites/default/files/gcis_document/201409/act84of1996.pdf

https://www.justice.gov.za/legislation/acts/2005-038%20childrensact.pdf

https://www.justice.gov.za/legislation/acts/2008-075_childjustice.pdf

https://www.justice.gov.za/legislation/acts/2011-017.pdf

Every year, South Africa attracts a high number of refugees, asylum seekers and migrants from all over Africa. Most applicants tend to make use of the asylum regime to regularise their stay in the country. However, South Africa’s immigration system is quite sophisticated and offers a lot of options for immigrants; however, the challenges lie at the implementation of these options. Due to these challenges, one can find themselves battling the South African Law while desperately seeking a change of circumstances, often resulting in little to no hope for this change.

The Benefits of Hiring an Immigration lawyer?

Immigration Law is a highly complex and specialised field of the South African Law. The primary immigration-related statues are the Immigration Act 13 of 2002, the Refugee Act 130 of 1998 and the Constitution. The immigration process may be extremely complicated and often South African citizen’s need assistance as they also struggle with the process at the Department of Home Affairs. The process requires copious amounts of admin and paperwork which can be overwhelming and time-consuming. This is because of the immigration law which is in accordance with the number of laws, policies, and formal and informal practices that the Department of Home Affairs and its officials have adopted. These practices must be followed accurately to ensure that the application for a temporary residence visa, permanent residence visa, or any other application are successful.

Therefore, an immigration lawyer can assist with the processes and paperwork which can alleviate any stress or unsuccessful applications due to missing, incomplete or incorrect documents. Immigration lawyers are experts in their field and thus, know the processes well. An immigration lawyer can provide guidance on selecting the appropriate visa category, gathering the necessary paperwork, and assisting with application follow-ups. Since immigration law is so complex, it can often be extremely hard for the average person to understand exactly what they need to do. An immigration lawyer will simplify this for you, answering any questions that you may have while ensuring that you are left feeling comfortable and understanding the entire process.

An immigration lawyer is a respectable professional, which in turn may benefit your application from the start by providing the Department of Home Affairs with the reassurance that you are indeed eligible for your desired status. Furthermore, immigration lawyers are registered with the Legal Practice Counsel and the Law Society of South Africa therefore, they are held to high standards of accountability and transparency.

Lastly, despite the notion that an immigration lawyer may be costly, they can assist with the elimination of the constant back and forth with the Department of Home Affairs. This will end up saving you time, unnecessary hassle, and money in the long run if you were to handle to application process yourself.

It is therefore in the best interests of any foreign national living or intending to live in South Africa to be advised and guided by an immigration lawyer. This would likely minimize the risk of receiving an unsuccessful application outcome or any unwanted situations occurring.



Please find below the abovementioned acts in the article:

https://www.gov.za/documents/immigration-act#:~:text=The%20Immigration%20Act%2013%20of,for%20matters%20connected%20therewith.

https://www.justice.gov.za/constitution/chp02.html

What is a Conveyancer Attorney?

A conveyancer attorney is an admitted attorney and conveyancer who specializes in any property related matters. Their role is multi-faceted as they generally handle the legal consultations, the document preparation and signature, verification, and the facilitation of the entire transfer process.

Property transactions are bound by contracts that the rights and obligations of each party therefore, contract law is an area that conveyancer attorney’s specialize in. The legal documents are intricate as they are embedded with clauses that carry significant implications. Their role is to dissect these agreements, ensuring that they are not only equitable but also enforceable. They scrutinize terms related to deposits, default, and conveyance to protect your interests and investments.

Furthermore, a conveyancer attorney is a legal professional that lodges the required documents at the Deeds Office. The attorney also approaches the municipality for the rates and tax clearance, ensures that the electricity or gas compliance certificates are in order, and ensures that all paperwork is signed. They also coordinate between the bond registration and cancellation attorney’s, the estate agent, seller, buyer, and various authorities such as the Deeds Office to ensure a timeous property transaction has occurred.

Moreover, local regulations can greatly impact property transactions. Zoning laws, building codes, and environmental restrictions play a critical role in determining how a property can be used or modified. The conveyancing attorney’s expertise extends to navigating these local intricacies, ensuring compliance and preventing potential legal challenges that could arise from non-conformity.

The Benefits of Hiring a Conveyancer Attorney

As the property transactions can be stressful, a conveyancer attorney’s primary responsibility is to safeguard your interests during the transaction.

As part of this responsibility, they perform thorough due diligence, including deed searches to confirm the property’s legal owner, checking for encumbrances or liens, and/or possible restrictions in the titled deed conditions, and ensuring that all the terms of the sale agreement are fair and fulfil the legal requirements. A conveyancer attorney will also hold and transfer funds during the transaction thus, providing an additional layer of financial security.

Conveyancer attorneys are also excellent negotiators who can address unexpected issues while keeping your best interests in mind. They can provide clarity and guidance through complex legal jargon to ensure that you are able to understand every step of the transaction.

A detailed examination of the transaction allows them to advise on obtaining the best possible terms. Additionally, they prepare and review all necessary documentation, including the deed of sale, mortgage bond documents, transfer documents, and more, meticulously ensuring that each complies with current laws and regulations.

Therefore, in line with the abovementioned, a conveyancer attorney is an essential profession and plays an important role in law. If you require a conveyancer attorney, then please contact Muthray & Associates Incorporated for further assistance.