Swemmer & Levin

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First things first, the woman claiming child support for a child born out of wedlock must prove paternity. In Sager v Bezuidenhout it is clear that both parents must contribute to the minor child’s needs and expenses. These expenses include any reasonable expenses that are considered in the best interest of the child, whether it is maintenance before or after the birth of the child.

The same principles will apply to children that are adopted. The parents of an adopted child have full parental responsibilities and rights conferred upon them, in terms of The Children’s Act 38 of 2005 (“The Children’s Act”). It makes no difference whether the child was adopted or not. However, the duty of support of the adopted child’s natural parents ceases to exist.

Children conceived by way of fertilisation are presumed that consent of both spouses was obtained for the artificial fertilisation and any child born as a result thereof is regarded as the child of those spouses, in terms of The Children’s Act.

However subject to section 296 of the Children’s Act which relates to surrogacy agreement, no right, duty or obligation arises between a child born as a result of the artificial insemination of a woman and a person whose gamete or gametes have been used for the artificial insemination, or the blood relations of that person, unless that person is the woman who gave birth to the child or was her husband at the time of the artificial insemination.[1] In the matter of L v J, Berman J stated that if no consent has been given by a husband for the artificial insemination of his wife, with sperm from an unknown donor, the child is deemed to be born out of wedlock and no duty of maintenance towards the minor child can be claimed against the husband.

Paternity of a parent may be determined by way of a paternity test and should a party refuse to submit himself, herself or the child to take a blood sample, the Court must warn the refusing party of the effect it may have on the credibility of the party. A maintenance officer may only order parties to take blood tests if the parties consent to such an order and may also, with consideration of certain factors, make an order as to who will be responsible for the paternity test.

When the maintenance Court is to determine maintenance in respect of the child, the following is taken into consideration:

  • parent’s joint duty to support their children;
  • each parent’s duty is apportioned in accordance with their financial means; and
  • that a duty exists whether born out of wedlock, by adoption or by artificial fertilisation.

 

In terms of section 15 of the Maintenance Act 99 of 1998, any maintenance order made should be fair in all circumstances of each case and that no child has priority of maintenance over another being born out of a second or third marriage.

The maintenance Court may make an order for maintenance of a child, after consideration of the evidence, to:

  • order a person proven to be legally liable to support the child to make payments;
  • stipulate the manner, duration and time of payment;
  • to whom the payment shall be made;
  • include medical expenses or order for a child to be registered as a dependant on a medical aid scheme; and
  • to pay the mother of the child the expenses plus interest in connection with the birth of the child and the maintenance from birth to the date of enquiry.

 

When a maintenance order is already in force, it may be replaced by the maintenance Court, and a person may be discharged from maintenance or make no order, in which case it will be equivalent to an order of absolution. It is of high importance that a maintenance order is specific.

South African Courts always consider the best interest of a child, as a priority and therefore will always take into account the best interest of the child when making a maintenance order.

Reference List:

  • THE HANDBOOK OF THE SOUTH AFRICAN LAW OF MAINTENACE BY DR BRIGITTE CLARK
  • [1] Clark ‘Handbook of the South African Law of Maintenance’ 13.

 

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.

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Jan Fourie

Director |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. 

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners. He is currently based at Swemmer & Levin’s Vredenburg office and has been with our firm for more than 47 years.

Pieter Smit

Director | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking. 

Johann Maree

Director | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he finally moved to Vredenburg and joined Swemmer & Levin, where he is still practising as a director. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Richard Phillips

Director | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity to join Swemmer & Levin on the West Coast, he agreed without hesitation and has been with our firm since 1997. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Jandré Smith

Director | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director at the firm, where he practises in the Litigation department at our Langebaan office. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Andre van der Walt

Director | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Harmann Potgieter

Attorney | LLB

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with Swemmer & Levin as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

Carla Cloete

Attorney, Conveyancer & Notary | LLB

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the Swemmer & Levin team as a professional assistant.