RIGHTS AND RESPONSIBILITIES OF UNMARRIED FATHERS

The rights and responsibilities of biological fathers who were not married to the child’s mother at the time of conception or birth can be uncertain. In this article we will discuss when a biological father obtains rights and responsibilities towards their child(ren).

Alissa has a 7-year-old son called Jessie. Alissa had been living with her boyfriend, Mike, for 2 years when Jessie was born. Alissa and Mike were never married and Mike left their common home when Jessie was only 1 year old. Mike makes contact with Jessie and contributes some small amounts towards his maintenance every few months. Alissa would like to know what rights and responsibilities Mike has towards Jessie.

Section 20 of the Children’s Act (“the Act”) confers parental responsibilities and rights on married fathers if they are married to the child’s mother or if they were married at either the time of the child’s conception, birth or any time between conception and birth.

The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of Section 20 of the Act can acquire these responsibilities and rights if one of the following conditions are fulfilled:

  • at the time of the child’s birth he is living with the mother in a permanent life partnership; or
  • if he consents to be identified; or
  • he successfully applies in terms of Section 26 of the Act to be identified as the father; or
  • he pays damages in terms of customary law; or
  • if he contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; or
  • if he has contributed or attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.[1]

It may be difficult to determine whether two persons are in a permanent life partnership or not. This term lacks a precise definition and has been described as “a stable monogamous relationship where a couple who do not wish to (or are not permitted to) marry, live together and share an intimate relationship” that is akin to marriage. The Constitutional Court has given limited recognition to the relationships labelled as “life partnerships” or “permanent life partnerships”, but no specific meaning has been attached to these terms.[2]

It is important to note that this section applies regardless of whether the child was born before or after the commencement of this Act, and that it does not affect the duty of a father to contribute towards the maintenance of the child.[3]

If there is a dispute between the biological father and the biological mother of a child with regard to the fulfillment by that father of the conditions set out above, the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. Any party to the mediation may have the outcome of the mediation reviewed by a court.[4]

From this article we can see that the only clear responsibility of Mike is that of paying maintenance to support Jessie. Due to the fact that the definition of a permanent life partnership is so vague, Mike and Alissa should refer this matter to one of the abovementioned mediators to obtain certainty about Mike’s rights and responsibilities towards Jessie.

References:

  • The Children’s Act 38 of 2005
  • Du Bois F, Willie’s Principle of South African Law (2007), 9th ed.

[1] Section 21 of the Children’s Act 38 of 2005.
[2] Du Bois F, Willie’s Principle of South African Law (2007), 9th ed., p363.
[3] Section 21(2) of the Children’s Act 38 of 2005.
[4] Section 21(3) of the Children’s Act 38 of 2005.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

WHAT CONSTITUTES FAIR DISMISSAL?

Labour law emphasises that every employee has the right not to be dismissed unfairly. This law defines the meaning of dismissal and when it may lawfully occur. Substantive and procedural fairness determines whether the dismissal was fair.

Dismissal means the following: The termination of a contract of employment with or without notice, and also if the employer fails to provide a fixed-term contract, or he does renew the contract, but on less favourable terms than the employee had reasonably expected.

Section 188 of the Labour Relations Act provides that dismissal is fair if the employer can prove that the dismissal is related to the employee’s conduct or capacity, or if it can be proven that the dismissal is based on the employer’s operational requirements. Dismissal is usually fair if a fair procedure was followed. Good practices are set out in legislation which outlines the discharge processes and must be taken into account.

Labour legislation provides for three different types of discharge, namely dismissal due to misconduct, poor performance or operational requirements. Certain procedures must be followed for each type of discharge. Employers sometimes confuse misconduct with poor performance. It is very important that the correct procedure is followed, but it is also necessary that the cause of the unsatisfactory behaviour is determined.

Misconduct is when the employee has violated certain rules such as rules against dishonesty or theft, or has refused to obey reasonable and lawful instructions. In these situations the employee has decided not to honour the code of conduct. The employee has knowingly violated a rule and therefore the person should be disciplined. This may result in written warnings and/or possible dismissal.

In contrast, poor performance involves situations where the employee is not in deliberate violation of any regulations but it may involve circumstances over which the employee may not necessarily have control. In this case other factors could be the cause of poor performance, such as lack of resources, inexperience, inadequate training or poor health. It is clear that the employee is not directly responsible for the behaviour and therefore disciplinary actions cannot be taken. The employee cannot be blamed for something like illness, therefore a counselling process is followed in lieu of a disciplinary hearing in order to find solutions for the poor performance.

The last type of dismissal is due to operational requirements. This type of discharge has to do with economic conditions, including a shortage of work or a lack of money. These are cases where the employer can no longer afford to retain a certain number of employees or new computers or sophisticated equipment have been acquired which renders a number of employees redundant. These are factors beyond the control of the employee and involves steps that the employer takes to protect his or her business from being ruined financially.

It is very important that the process contained in section 189 of the Labour Relations Act be followed here. This process requires the employer to engage with the employee in a meaningful way in order to negotiate and disclose certain information before dismissal can take place.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

ROAD CYCLISTS vs. MOTORISTS

The popularity of road cycling as a competitive sport and a form of transportation is on the rise. This naturally leads to major safety concerns and serious accidents among both groups of road users.

Both the National Road Traffic Act[1] and the Western Cape Provincial Road Traffic Act[2] regulate the rights of and rules for pedal cyclists and motor vehicle drivers on roads in the Republic of South Africa. The National Road Traffic Act has specific regulations pertaining to cycling safety and every cyclist should be alert to these regulations. Regulation 3113[3] states as follows:

  1. No person shall ride a pedal cycle on a public road unless he or she is seated astride on the saddle of such pedal cycle.
  1. Persons riding pedal cycles on a public road shall ride in single file except in the course of overtaking another pedal cycle, and two or more persons riding pedal cycles shall not overtake another vehicle at the same time.
  1. No person riding or seated on a pedal cycle on a public road shall take hold of any other vehicle in motion.
  1. No person riding a pedal cycle on a public road shall deliberately cause such pedal cycle to swerve from side to side.
  1. No person riding a pedal cycle on a public road shall carry thereon any person, animal or object which obstructs his or her view or which prevents him or her from exercising complete control over the movements of such pedal cycle.
  1. A person riding a pedal cycle on a public road shall do so with at least one hand on the handle bars of such pedal cycle.
  1. Whenever a portion of a public road has been set aside for use by persons riding pedal cycles, no person shall ride a pedal cycle on any other portion of such road.
  1. A person riding a pedal cycle on a public road or a portion of a public road set aside for use by persons riding pedal cycles, shall do so in such manner that all the wheels of such pedal cycle are in contact with the surface of the road at all times.

The Western Cape Provincial Road Traffic Act was passed on the 29th November 2012 and this Act has implications for both pedal cyclists and motor vehicle drivers. The Act empowers the Provincial Minister of Transport to regulate[4] certain matters to increase road safety in the Province. Amongst others, regulations requiring all vehicles overtaking cyclists to ensure that there is a safe distance of at least 1.5 metres between them before passing, and law enforcement actions against cyclists who do not ride in single file, or who fail to stop at red traffic lights or stop streets were enacted.

Cyclists have the right to expect motor vehicles to overtake them safely and be on the look-out for them at intersections. The Road Traffic Act is clear where it states that drivers must take other road users into account in whatever they do. Cyclists also have the right to the left-hand side of the road (not the extreme edge of the left-hand side). We tend to forget that there are cyclists around us who are also using the roads as a means of transport. Apart from the recently built cycle-lanes in Cape Town, we do not have dedicated lanes in South Africa for cyclists to use. This means that every day cyclists are fighting for road space amongst often aggressive and ignorant drivers, according to the Automobile Association of South Africa (AA).

While the law states that cyclists must wear protective headgear while riding a bicycle, for many this is a cost that they simply cannot afford, making them almost invisible to the drivers on the road.

Therefore, as a driver, ask yourself what you can do to avoid colliding with a cyclist. The AA provides some safety tips for drivers:

  • Yield to cyclists, especially at intersections and circles.
  • Check your blind spots and make sure the way is clear before changing lanes or direction.
  • Do not drive, stop or park in a bicycle lane.
  • Give cyclists enough room when overtaking – at least 1.5 metres.

Changing the behaviour of drivers will assist in the fight to stop cyclist crashes and deaths on our roads. However, cyclists also have to do their part by following the rules and making sure they are visible.
Here are some safety tips for cyclists on the road:

  • Obey the traffic signs and rules.
  • Keep left and keep at least one metre clear of the pavement and parked cars.
  • Ride with the traffic and not against it.
  • Be visible – wear reflective clothing and a bright-coloured helmet at all times.
  • Use lights at night – a white headlight and a red rear lamp.
  • Use hand signals when turning or changing lanes.
  • Always cycle in single file.

In order to reduce the level of carnage on our roads we need to work together as road users, and this means that both cyclists and drivers need to follow the rules. The first step in doing this is to become aware of the rules and regulations in place to protect and serve the interests of both groups of road users.

Bibliography:

  1. www.aa.co.za
  2. www.arrivealive.co.za
  3. www.acts.co.za/national-road-traffic-act-1996
  4. www.polity.org.za

[1] 93 of 1996
[2] 6 of 2012
[3] National Road Traffic Regulations, 2000. Government notice R225 in Government Gazette 20963, dated 17 March 2000. Effective as from 1 August 2000 (page 340/389).
[4] Dec 6, 2013 – Province Western Cape: Provincial Gazette 7208.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

ANNULMENT OF A MARRIAGE

Consent is an essential element of a valid marriage and the parties to a marriage must confirm before the marriage officer during a civil ceremony that they voluntarily consent to marry each other.[1] There are certain circumstances where it can be said that consensus was not present, and this will be discussed below.

Six months after John marries Laura they decide that they want to start a family. John finds out from the doctors that he is sterile and cannot have children. Laura is distraught and contacts her attorney, saying that she would never have married John if she had known that he could not have children.

Laura’s attorney explains to her the circumstances in which consensus will either be lacking or materially deficient, in which case the marriage can be annulled (set aside).

Firstly, a material mistake will result in a lack of consensus. A material mistake is limited to where there is a mistake as to the identity of your spouse or a mistake regarding the actual act of marriage in that you did not understand that the ceremony in which you took part resulted in marriage with the other party. In these circumstances there is uncertainty as to whether the marriage never came into existence or if it can be set aside. One may also make mistakes regarding the personal characteristics of your spouse. This may only be a ground on which the validity of the marriage can be challenged if these are material characteristics. The decision whether a mistake regarding a personal characteristic is material or not rests with the Court.[2]

Secondly, a misrepresentation by your spouse may justify the setting aside of a marriage if that misrepresentation relates to a material aspect of the marriage. In the scenario above, if John was aware of the fact that he was sterile before entering into the marriage with Laura, then Laura could attempt to prove that she was misled and state that if she was aware of John’s sterility, she would never have married him. However, if John was unaware that he was sterile, this is not a sufficient ground on which to set a marriage aside.[3]

Thirdly, if one of the parties was unduly influenced or placed under duress to marry the other party by any person including but not limited to the party to which they have been married, then there is no consensus and the marriage can be set aside.[4]

Fourthly, impotence, being the inability to have sexual intercourse, may be a valid ground for setting aside a marriage, but this will not be so if it was reasonably foreseeable at the time that the marriage was entered into that sexual intercourse wouldn’t take place based on factors such as age or illness.[5]

Fifthly, if the scenario above was altered to read that Laura was pregnant with another man’s baby at the time that she married John then he could apply to have the marriage set aside on the basis that this state of affairs would most likely result in an unhappy marriage. He may only make this application if he was unaware of the pregnancy at the time that they were married and if he has not waived his right to have the marriage annulled.[6]

Bibliography:

  • Robinson JA, Human S, Boshoff A, Smith BS, Carnelley M, Introduction to South African Family Law, 4th ed., 2009, 92 – 94.
  • Heaton J, South African Family Law 3rd ed., 2010, 37.
  • Marriage Act, 25 of 1961.

[1] Section 30(1) of the Marriage Act, 25 of 1961.

[2] Robinson JA, Human S, Boshoff A, Smith BS, Carnelley M, Introduction to South African Family Law, 4th ed. (2009) 92.

[3] Robinson JA, Introduction to South African Family Law, 4th ed. (2009) 93.

[4] Robinson JA, Introduction to South African Family Law, 4th ed. (2009) 93.

[5] Heaton J, South African Family Law, 3rd ed. (2010) 38; Robinson JA, Introduction to South African Family Law, 4th ed. (2009) 94.

[6] Heaton J, South African Family Law 3rd ed. (2010) 37; Robinson JA, Introduction to South African Family Law, 4th ed. (2009) 94.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.