Child Abuse Issue 1

Child Abuse Issue 1

Let us embark on a journey through this most unpleasant predatory behaviour pattern within the human behavioural characteristics, every now and again showing its ugly fangs with an alarmingly increasing statistic, globally.

Let us start out by just touching the surface for now, in a way to lay a foundation for what is to come.

Definition

Though definitions are variable, it can be said that the ‘child abuse syndrome’ (also known as the ‘battered baby’ or ‘non-accidental injury in childhood’) exits when an infant or child suffers repetitive physical injuries inflicted by a parent or guardian, in circumstances that exclude an accident.

Modes of death in child abuse

The majority of deaths are caused manually:

•  either by hitting or beating of the hands;
• shaking;
•  throwing;
• dropping;

and less often by

• burning; and
• suffocation.

The most common mode of death is head injury.  Next in frequency is rupture of an abdominal viscus, leaving a wide range of miscellaneous injuries to account for the small remainder.

Surface Bruising

The skin and bones tell a story which the child is either too young or too frightened to tell.

Skin bruising is the most common injury and may be observed almost anywhere on the child’s body. 

There are however specific indications which emphasise child abuse, and they are as follows:

• bruising around the limbs, especially the wrist and forearms, upper arms, thighs and – in small infants – around the ankles;
• the buttocks are a frequent site of bruising from hand smacks or beating with a strap;
• bruises on the thigh are less common, but on the outer side may signify slaps and on the inner, possible sexual interference;
• the face is often bruised, especially the cheeks and mouth area, from slaps, which may also be present on the forehead and ears;
•  associated damage to the mouth and eyes is common;
• bruising of the scalp is harder to see because of the hair, but is often part of the deeper head injury;
• bruises on the chest, abdomen and neck are usually from finger pressure rather than slaps or blows;
• those on the abdomen and lower chest may be associated with deep visceral injury.

In the above pictures some of the indications can be seen that is directly linked to child abuse – we will take it slow – these pictures are enough to start with at this stage.

Biblical Perspective

Proverbs 23:13-14

Do not hold back discipline from the mere boy.  In case you beat him with the rod, he will not die.  With the rod you yourself should beat him, that you may deliver his very soul from Sheol itself.

South African Legalistic Perspective

The Constitution of the Republic of South Africa Act 108 of 1996

Section 28(1)(d)

Every child has the right to be protected from maltreatment, neglect, abuse or degradation.

Child Care Act, 1983 (No. 74 of 1983)
Chapter 8 Prevention of Ill-treatment and Unlawful Removal of Children, and Prohibition of Employment of certain Children
50. Ill-treatment or abandonment of children

1)      Any parent or guardian of a child or any person having the custody of a child who-

a)        ill-treats that child or allows it to be ill-treated; or

b)        abandons that child,

or any other person who ill-treats a child, shall be guilty of an offence.

2)      Any person legally liable to maintain a child who, while able to do so, fails to provide that child with adequate food, clothing, lodging and medical aid, shall be guilty of an offence.

3)      Any person convicted of any offence under this section shall be liable to a fine not exceeding R20 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

As one can clearly observe by all means a difficult position we find ourselves in.  Even delivering corporal punishment to your child can be construed as assault – abuse.  On the one side the Bible teaches to discipline your child with a ‘rod’, which in itself does not mean to kick him, burn him with an iron or cigarettes for that matter – see the two photo’s – that is abuse, murder, a sick mind – not normal corporal punishment.

But when we view the legalistic implications we might be moving into a future where physical as well as psychological punishment will become absolute.

I found it very interesting that law reformers in South Africa sought to interview children about their corporal punishment and not grown-ups years later to rather reflect on the effect it had on them as time went by!

But we must be careful when we measure normal corporal punishment against child abuse itself – as there is a vast difference between these two fields, as we will see in the coming issues.

Where do I stand – with God of course – how does God speak and guide my life in raising my son – among other ways predominantly through His Word obviously – will my constitutional right to religion weigh more than the freedom and protection rights being awarded to children in our day and age – I seriously doubt it – we may be in it for the long haul as well as a rather unpleasant and bumpy ride!!

See you next time – and remember the children belong to God – and you don’t want to mess with Him!!!

Top of Form

Bottom of Form

RE:     LEGAL SEMINAR :  LAW OF CONTRACTS / DRAFTING OF CONTRACTS

With reference to the aforementioned training module, the following topics will be addressed during the seminar and will be held over a period of three consecutive days:

1.     Division A:  Legal Principals of Contracts in Terms of Commercial Law

1.1         Definition of a Contract

1.2         Sources of the South African Law

1.3         Classification of South African Law

1.4         Branches of Law

1.5         The south African Judiciary

1.6         Introduction to the Law of Contract

1.7         What constitutes a valid contract?

1.8         Offer and Acceptance

1.9         What can influence consensus?

1.10      What can influence capacity?

1.11      What can influence lawfulness?

1.12      What can influence physically possible?

1.13      What about formalities?

1.14      Performance

1.15      What happens when a contract is:

·        Valid

·        Void

·        Voidable

1.16      Who are the parties to a contract?

1.17      What constitutes the contents and terms of a contract?

1.18      How can a contract be breached?

1.19      What would the legal remedies be when a contract is breached?

1.20      How do we terminate contracts?

1.21      What do we know about the law of agency?

1.22      What about insurance contracts?

2.       Division B:  Specific Contracts

2.1         Contract of Sale

2.2         The Credit Agreement

2.3         Letting and Hiring

2.4         The Contract of Employment

2.5         The Contract of Surety

2.6         Service Level Agreements in General

3.       Division C:  Drafting of Contracts:  Practical

3.1         The duties of the drafter

3.2         General guidelines

3.3         Contents of particular contracts

3.4         How to draft an understandable contract

3.5         Common Terms

The above seminar is brought to the economic sector by ACLA at nominal fee of R6 400 (VAT inclusive) per delegate for the entire duration of the seminar and it is advised predominantly for in-house training.  Corporate companies can direct their enquiries with Janet at jlclark@webmail.co.za or on cell phone number 072-907-9839.

For in-house training ACLA requires a minimum of 4 delegates per seminar session held in Gauteng.  For any other bookings outside Gauteng as well as within neighboring Southern African Countries, travelling and accommodation costs will be negotiated as an additional expense.

ACLA MARKETING DEPARTMENT: CONTRACTS

FROM THE CHAMBERS OF ADVOCATE JAMES CLARK

Consumer Protection Act: Labeling and Specification requirements

COMMERCIAL VEHICLES
HIGH NOON FOR SNAKE OIL- BY DAVE SCOTT
AutoForum and forerunner. Auto
Engineering & Spares, have both
carried many articles exposing automotive
components that play a decisive
role in a vehicle's cost of ownership
and reliability, including road safety. The
lack of response and rebuttal to these
exposures can only mean that we
were on target in an unregulated
market where low cost rules at the
expense of consumers. This is about
to change dramatically.
The new Consumer Protection Act No
68 of 2008 (CPA) places SA consumers
in the position of being the most
protected consumers in the world
- products must stand up to close
inspection for any claim they make,
especially implied claims. This contains
huge threat for all those automotive
parts and lube suppliers who, with false
claims, have been dumping weak and
faulty products onto the market.
As attorneys Deneys Reitz states: "The
Consumer Protection Act, signed into
law on 29 April 2009, places onerous
obligations and prohibitions on suppliers
and will have a significant impact on
the way business is conducted in South
Africa... the Act introduces a system of
product liability on suppliers for damage
caused by the supply of defective
goods. A consumer can therefore claim
damages from producers, distributors
or suppliers for any death, injury, loss,
damage to property and economic loss,
without having to prove negligence.
A load strap with a 5 tonne label will
clearly mean that a 'reasonable person'
will understand the breaking strain is 5
tonnes. And while in practice this is only
740 kg, the supplier and manufacturer
of the load strap will face huge claims.
The SA lnstitute of Tribology (SAIT)
recently held a workshop around the
CPA and the specifications, product
markings and advertising implications
for South Africa's lubricant industry. A
'Tower-of-Babel' clearly exists among
lubricant suppliers in terms of product
marking - whose standard applies? Will
it be American, European or Japanese
and what do all these acronyms on a
lubricant can mean to a 'reasonable
man'- especially a 'reasonable
man' in Africa?
At the SAIT workshop Adv
James Clark presented legal
opinion on the CPA with specific
regard to product labeling and
specification requirements.
Adv Clark's warning is clear:
"lt is advised that product
and service providers must, as far as
possible, stay away from implied trade
descriptions, as they are susceptible to
the reasonable man's interpretation and
imagination as well as to those entity's
that may have a warped imagination.
The negative of implied will always be
prone to interpretation beyond and far
from the actually implied trade descriptions
supplied by the product and/or
service provider. Adv. Clark goes on
to conclude that: "To pass this scrutiny
under the new Consumer Protection
Act, manufacturers will have to 'watch
their language'and make it 'particularly
loud and clear' if using the product
carries any conceivable risk."
This is high noon for'snake oil' sellers
whose product claims imply there are
fairies at the bottom of the garden.
According to Adv. Clark the following
is a summary in terms of the consumer's
right to product labelling and
trade description:
. Suppliers and service providers are
required to display labelling and trade
descriptions of products, which do
not mislead consumers about the
contents of the packaging or goods
attached to the products.
. Suppliers are not permitted to alter
amend, conceal, remove or deface
trade-marks and other product labelling,
so as to mislead consumers.
. Producers/importers of products
or goods are required to display
the country of origin and any other
prescribed information, such as
expiry dates.
. Producers, suppliers and importers
are required to disclose the presence
of any genetically modified
ingredients, in compliance with
international and South Alrican laws
and regulations.
There's no time to be lost. Deneys
Reitz attorneys observe: "The sections
governing the establishment of the
National Consumer Commission - an
enforcement and investigative body -
will come (came into operation on 24
April 2010) as will the regulations to be
promulgated in terms of the Act. This
will ensure that businesses will be in a
position to know exactly what they need
to do in order to comply, before the
implementation of the rest of the Act.
The remainder of the Act will come into
force on 24 October 2010."
Truck original equipment manufacturers
(OEM's) and their dealers must take
note of the CPA. A truck OEM supplies
a chassis/cab that is converted by a
dealer and body/equipment supplier
into a complete product - there's a
number of role players who must
ensure the truck delivers its promise in
harmony of all components. And finally
vehicle selection for the task - get this
issue wrong and the CPA will ensure the
truck supplier is taken to task.
The CPA will create a whole new
industry of damage-seeking clients
and a legal segment that will focus on
this new Act.

Maintenance Issue 7

Maintenance Issue 7

Children’s duty to support parents

Parents and children have a reciprocal duty of support.  Children have a duty to support their parents and grandparents, but always subject to the rule that support must be claimed from nearer relatives first. The basis of a child’s duty to support parents is the sense of dutifulness or filial piety. 

A parent who claims support from a child must prove his or her need and the child’s ability to support.

In Van Vuuren v Sam 1972 (2) SA 633 (A) at 642 Judge Rabie stressed that the support of parents must be confined to the basic needs:

·         Food;

·         Clothing;

·         Shelter;

·         Medicine;

·         and care in times of illness.

Relying on Surdus at Tractatus de Alimentis 4 18, he stated that in assessing the quality and condition of the person to be supported it is primarily his present situation, not his past one, which is considered and that in assessing these, the judge should exercise his discretion.

Other duties of support

Relations by affinity

As a rule in South Africa a stepfather has no reciprocal duty of support towards his stepson, and a stepson has no reciprocal duty of support towards a step-parent, and of course vice versa.

It must however be stated that where a stepfather is married in community of property to his stepchild’s mother, the mother’s contribution to the child’s support comes out of the joint estate, due to a expected bondless relationship between stepfather and stepson in the sense of dutifulness.  I must admit that in our constitutional development as we progress into the future I cannot see that this status quo will be maintained must longer and we might in the future see a shift to reciprocal support developing under these circumstances taking into regard the “best interest of the child”.

Collaterals

Brothers and sisters and half-brothers and half-sisters have a reciprocal duty of support.

Once again, this is a duty that is much more restricted than that owned by a parent to a child.

There is no duty of support between more remote collaterals such as:

·         uncles;

·         aunts;

·         nephews;

·         and nieces.

Duty of support between grandparents and grandchildren

There is a reciprocal duty of support between grandparents and grandchildren and between ascendants and descendants without end.

However, the usual rule operates here that support must always be sought from the nearer relative and only if it does not come from the nearer relative should it be sought from the more remote relative and one wonders how far our High Supreme Courts will actually take this in terms of the a remote relative, most probably as long as it is in the most minute sense a definite relative, and remember we are discussing grand’s – up and down here, nothing else.

Duty of support between spouses

There is beyond doubt a duty of support between a husband and wife as soon as they become as such.

If income is insufficient to provide support for a spouse, it may be necessary to liquidate assets.  In order to fulfil her duty, it may be necessary for the wife to do unpaid work in her husband’s business or to find employment – I know the ladies won’t appreciate this but this is also applicable to husbands which in today’s economic environment is becoming more and more apparent, especially under white males due to various legislation that is making employment harder and harder for them to obtain.

The case of Reyneke v Reyneke 1991 (3) SA 927 (E), which is fairly new, and by no means an good example as how husbands should act, gives an insight into how the courts deal with these issues.

Here we had a couple that were married in community of property but living apart.  Although the wife needed support, the husband could not work and was unable to support himself; so even though it was found in the maintenance court that the husband had deliberately impoverished himself and the joint estate with the fraudulent intention of frustrating his wife’s claim for maintenance, no order for the payment of maintenance was made against him.  On appeal, the magistrate’s decision was upheld by the Supreme Court.  Even though other common law remedies were not available to the wife, the court held that it could not fictionally attribute to the husband means which he no longer had, sins the whole basis of maintenance awards depends on reality.  It was held that the factual need to be supported and the factual ability to furnish support are as crucial to the duty of support as the relationship between the parties and that what it comes down to is that “the duty to provide support is not an absolute duty and the right to receive maintenance is not an unqualified right”.   

Very important to note furthermore is that in terms of the Matrimonial Act 88 of 1984 section 23 (2) spouses married out of community of property, whether before or after the commencement of the Act, must each contribute to the necessaries for the joint household proportionally according to their means, and they are also deemed to have been liable to do so from the beginning of their marriage until the commencement of the Act.  They are jointly and severally liable to third parties for all the debts incurred by either of them in respect of such necessaries.

Cohabitees

In South African law cohabitees have until recently not been considered to owe each other a duty of support either during the relationship or when it ends, although in Ally v Dinath 1984 (2) SA 451 (T) the plaintiff alleged that she and defendant, who had lived together in an Islamic relationship for about fifteen years, had tacitly or by implication entered into a universal partnership and accumulated a joint estate.  The aim of the partnership was to create a joint household and to accumulate a joint estate for the benefit of both parties.  The court referred to the firmly established principle that any contract can be brought about by conduct and, in respect of the making of a profit, the allegation of the objective of the accumulation of an appreciating joint estate was found to be sufficient, at least for purposes of pleading. 

In Langemaat v Minister of Security 1998 (3) SA 312 (T) it was held that in the light of the Constitution, partners in a long term same sex union owed each other a duty of support.

Both marriage and this type of union were deserving of respect and protection according to the learned judge’s understanding of section 39(2) of the Constitution.

Court Cases

Copelowitz v Copelowitz 1969 (4) SA 64 (C)

The standard at which a divorced spouse is to be maintained must be determined as at the date of divorce, always bearing in mind that the standard drops automatically on divorce.  This drop in standard usually affects both parties to a divorce as well as their children.  An improvement in one’s financial position after divorce is to one’s own benefit since the bonds of marriage no longer exists.

Couper v Flynn 1975 (1) SA 642 (O)

It is generally recognised that on divorce neither spouse is entitled to maintain the same standard of living as during the marriage.  (This means nobody has an enforceable right thereto – not that it cannot in fact turn out like that!)

Maintenance Issue 6

Maintenance Issue 6

Duty of support of child born as a result of artificial fertilisation

In L v J 1985 (4) SA 371 (C) at 377, Berman J held that there is no doubt that where a husband has given no consent to his wife’s resorting to artificial insemination with the sperm of an unknown donor, the child is illegitimate, and no duty is imposed on the husband to provide maintenance for the child born by artificial insemination.  I have to admit that this was in 1985 and I am of the opinion that this might not be so easy as it sounds taking into regard section 28 in Chapter 2 of the Constitution 108 of 1996 on the foundation of the best interest of the child.  There are judgements out there that has disregarded everything just to maintain the status quo in terms of the best interest of the child.  This does not mean that I have not empathy for this father, but the fact remains that this child will have to be maintained and what if the wife is a housewife with no income of her own.  Something to think about despite the fact that if might be in the extreme unfair to this father.

The Children’s Status Act in section 5(1)(b) provides that 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 and

·         The blood relations of that person;

unless that person is the woman who gave birth to the child or is the husband of the woman at the time of the artificial insemination.

Extra-marital children

It is today settled law that the ordinary rules relating to a parents’ duty to support his or her child apply in respect of an extra-marital child.  Thus both parents must support any children, and there is no difference in scale; both are responsible for maintenance according to their means.  A woman claiming support for her marital child must prove paternity. 

Both parties must contribute to the lying-in expenses according to their means.  These include maintenance for the mother immediately before, during and immediately after birth.  These expenses are considered to be in the child’s interest as against damages for seduction, which are considered to be for the benefit of the woman.  Whether loss of earnings is claimable as part of lying-in expenses is controversial, and there are judgements therefore as well as against such claims.

 Adopted children

According to the Child Care Act, “an adopted child shall for all purposes whatsoever be deemed in law to be the legitimate child of the adoptive parents”.  Thus in regard to the reciprocal duty of support between parent and legitimate child it makes no difference whether the child is adopted or not.  Upon adoption, the reciprocal duty of support between the adopted child and his or her natural parents ceases to exist.  

Court Cases

Buch v Buch 1967 (3) SA 83 (T)

There should be full disclosure of the financial position of the parties.  Even where the parties are represented the maintenance and presiding judicial officers share with the parties the responsibility of gathering evidence.

Chizengeni v Chizengeni 1989 (1) SA 116 (ZHC)

It would be superficial and unrealistic to suggest that the first wife must be maintained at the same standard even though the husband has subsequent commitments.

Roels v Roels [2003] 2 All SA 441 (C)

Whether “good cause” exists for the variation of a maintenance order must be assessed on the particular facts of each case.

Maintenance Issue 5

Maintenance Issue 5

Tertiary education

The duty to maintain children in certain circumstances include the duty to provide tertiary education.  Whether this will fall under the head of ‘necessaries’ will depend on, amongst other things, the parent’s financial circumstances and social status and the children’s academic aptitude and achievements.  The fact that children are capable of supporting themselves does not preclude the duty.

Duration of duty to support children

A parent’s duty to support a child does not cease when the child reaches a particular age, but it usually does so when the child becomes self supporting.

Where there is no existing order and maintenance is sought for major children, the onus is on those children to show their need for maintenance and how much is required.

A major is not usually supported on as lavish a scale as a minor.  In B v B 1997 (4) SA 1018 (SE) at 1021 it was stated that although the duty of support persists into the child’s majority, its nature changes and it is then confined to necessaries: “In other words, the child must be in indigent circumstances in the sense that he or she is in need of a contribution towards his or her maintenance.

“Indigent” meaning destitute, needy, and poor.

Can a child’s conduct relieve a parent of the duty to support?

Voet 25 3 18 states that the duty ceases when the person to be maintained is guilty of ingratitude of a degree that would justify disinheritance.

  

Court Cases

Beukes v Beukes 1995 (4) SA 429 (O)

Variation of a maintenance order.

At a maintenance enquiry the presiding officer must play an active role to ensure that the necessary evidence is obtained even where the parties are represented.

Where important evidence is lacking, such as, in casu, evidence of the income and financial position of the party having the duty to pay maintenance, the presiding officer must ensure that that evidence is adduced.

A change in the financial position of the applicant in such an application is not required before a variation of the existing maintenance order can be granted.

It appears clearly from the provisions of section 4 of the old Maintenance Act that the maintenance court can substitute or suspend the maintenance order only if there is ‘sufficient cause’.

Sufficient cause does not necessarily means changed circumstances only.

The maintenance officer must be present throughout the enquiry even if the parties are legally represented.

The new Maintenance Act refers to ‘good cause’.  

Maintenance Issue 4

Maintenance Issue 4

Recovery of Contributions

Third persons who have supported children can recover contributions from parents.  A parent cannot set off extraordinary expenditure, for example payment of a child’s medical expenses, or expenditure on education and clothing against liability to pay maintenance in respect of that child.  Maintenance which has been made an order of court must be adhered to and only the court has the power to change such a maintenance order.  A maintenance order that is not followed and paid as per court order can lead to contempt of court as well as to imprisonment.

Measure of support of children

The level at which maintenance is provided is usually determined by the standard of living of the parents and their standing in the community.

However, in calculating how much maintenance a child should receive the approach of first estimating what the liable parent can afford to contribute and then adapting the child’s needs accordingly is incorrect.  It has to do with the child’s needs and then assessing what the liable parent can afford.

In addition to food, clothing and accommodation the provision of the amenities of electricity, water, linen, cutlery and laundering should be taken into account.

In order to fulfil their obligations to support children, parents must use their income and also, if necessary, their capital.

One of the three prerequisites of the duty of support is that there be adequate resources on the part of the person who is called upon to provide support.  One cannot expect the liable person to pay support if he/she cannot find a job or to claim an excessive amount for maintenance if the liable person’s income cannot afford it.  It follows that as long as a parent is genuinely indigent and unable to work, for example for health reasons, he or she is not under an obligation to support children.  Where a parent is able to provide only limited support or a limited contribution to the child’s support and any particular requirement of the child is beyond the parent’s financial means, the parent is not obliged and is under no duty to provide the requirement concerned.

In terms of the second of the three prerequisites, parents need not support a child who does not need maintenance or is self-supporting.  The child may be working or may have income from other sources.  The fact that a child can support himself or herself does not always preclude a duty to provide higher education, however.  Where a child has income but the parent nevertheless maintains the child, the question whether the parent can at a later stage recover the contribution depends on the intention with which it was made, and if it was intended as a donation there can be no recovery of the contribution.

  

Court Cases

Benecke v Benecke 1965 (1) SA 855 (T)

“Good cause” or sufficient reason cannot be defined precisely neither is it desirable or possible to give such a definition.  Particular circumstances of each case must be considered.  If a person liable to pay maintenance has caused the deterioration in his financial circumstances for example by entering into a second marriage, the court will be inclined to be less sympathetic.

Bing and Lauer v Van den Heever 1922 TPD 279

The reciprocal duty of support of spouses is not dependent on the existence of a joint household and continues unless the spouse to be supported is to blame for the fact that there is no longer a joint household.

Boulle v Boulle 1966 (1) SA 446 (D)

In order to fulfil their obligations to support children, parents must use their income and also if necessary their capital.