The Children’s Act 38 of 2005 provides that a parent has the following rights and responsibilities towards his/her child:
It is always the best solution for parties going through a divorce to discuss and settle the issue regarding care and contact, as well as rights and responsibilities as soon as possible. This keeps some form of normality and gives reassurance to the children that both parents are still a part of their lives. An interim order may be granted by the court during divorce proceedings regulating care and contact while the main divorce action is still pending.
Care means that one party is the primary caregiver of the minor children. This is the same as custody. Contact means the other party’s right to access to the minor children. Where the care and contact of the minor children cannot be settled upon, or to determine if it is in the best interest of the minor children, the Office of the Family Advocate has made the following recommendations regarding contact:
Contact over the Holidays
Short school holidays, depending on the child’s age and maturity, usually alternate yearly. Long school holidays are usually split in half and will alternate yearly. If the child is not able to cope with long periods away from one parent, the holiday contact time should be shortened accordingly by agreement between parties.
In addition, the agreement or court order can state that the child has the right to spend Mother’s Day with the mother and Father’s Day with the father. The minor child also has the right to spend an agreed amount of time with the mother and father on their respective birthdays should the child not be in their primary care at the time. The agreement or order should set out how the parent of alternate residence will exercise contact on the minor child’s birthday.
The agreement or court order will also normally contain a clause stating that the minor child, depending on their age and maturity, will be entitled to telephonic or video call access to the other parent when they are not with the one parent at reasonable times. Each parent is obliged to provide the other with the relevant contact details.
School Reports and Other Rights
The agreement must regulate the parents’ involvement in the minor child’s schooling. Both parents must have full access to the school and teachers and should remain involved and support the minor child’s progress at school and participation in extra-murals. The agreement or order usually contains a directive to inform the child’s school that the parents are co-holders of parental rights and therefore jointly involved in all educational issues concerning the child. Each parent will be entitled to discuss issues relating to the child directly with the teacher concerned, as well as receive school reports, assessments and notices, and attend all school-related events and extra-mural activities.
Joint decision making
Parents have to make joint decisions regarding certain issues. These will be set out in the agreement or order and usually include major decisions about contact with the child, school and tertiary education, medical and mental health issues and any decisions that are likely to significantly change the child’s living conditions or have a negative effect on his or her overall well-being. Parents need to be accommodating and should support one another in sharing the responsibility of making major decisions concerning their children.
Parents should communicate
Communication between parents is a vital aspect that should be covered in an agreement or order, as it will assist parents in meeting the minor child’s needs, prevent the minor child from a sense of worry and fear of abandonment and protect the minor child from continued parental conflict, feelings of unhappiness, and unrealistic expectations about the relationship between his or her parents.
As more than one person may hold parental responsibilities and rights in respect of the same child, each one may make decisions without the consent of the other party. This will be in circumstances where the minor child’s primary residence is with one parent, who is then entitled to make decisions about the day-to-day care and needs of the child.
Refusal to allow the other parent to exercise parental responsibilities and rights
The Children’s Act contains specific provisions that aim to prevent one parent from preventing the other parent in the exercise of rights and responsibilities. A parent should never attempt to discourage a child from contact with the other parent or alienate a child from the other parent. Any parent who refuses to allow the other parent to exercise his or her rights and responsibilities contrary to a court order or properly concluded parenting plan agreement is guilty of an offence, and will be liable on conviction to a fine or sentenced to imprisonment for a period not exceeding one year. In addition, the parent with whom the child lives must notify the other parent in writing of any change to his or her residential address. Failure to do so is considered a criminal offence and is punishable by a period of imprisonment not exceeding one year.
Once these issues can be agreed upon or settled, it can be made an interim order of court while the main divorce action is still pending. Ultimately, the best interests of the children should be paramount in any consideration where they are concerned.
A South African citizen that lives overseas and who has a spouse that resides in South Africa (Port Elizabeth/ Gqeberha) can in terms of the South African Divorce Act, legally commence divorce proceedings in South Africa.
The opposite is also possible, that is, a spouse in South Africa can also divorce his or her spouse who works or lives overseas in South Africa.
In order to divorce your spouse who lives overseas you will first be required to bring an application before the divorce court in South Africa, this application is required to obtain an order for an international sheriff to serve the divorce summons internationally. This is generally a quick and easy application that does not delay the divorce proceedings, after the application is granted, a sheriff in an international jurisdiction can serve the divorce summons on your spouse that lives overseas. The normal divorce procedures then commences. Should the spouse who lives internally not defend the summons you will be able to obtain a divorce order by default.
On the other hand, if your spouse lives in South Africa, the process is easier and no special application to a court is needed. An attorney in South Africa can prepare and serve the summons in the normal way. If the divorce is opposed, the attorney can bring an application to lead your evidence through digital formats such as Zoom or Microsoft Teams, you will not be required to travel to South Africa.
But what if the parties are in agreement? This makes the procedure a lot more streamlined, an attorney in South Africa can draft a settlement agreement that can be signed internationally by one spouse and sent via e-mail back to the attorney in South Africa. The attorney can proceed with divorce proceedings in the usual uncontested divorce manner. This process can be so streamlined in the hands of an experienced divorce attorney that he or she should be able to finalise the divorce within six weeks.
To contact a Divorce Attorney who specialise in International Divorce cases in South Africa and who is able to finalise an uncontested international divorce in as little as 6 weeks, click the banner below.
Social media represents one of the most significant developments in human communication and has undoubtedly changed the way we interact and share information. Social media has become a prevailing presence in our lives, including the workplace, and therefore poses a significant risk to the reputational integrity of employees and employers, advises legal director, Advocate Tertius Wessels from Strata-g.
“We’ve already seen how social media rants and utterances can get people from all ethnic backgrounds into trouble. But, the reputation of a company may also be called into disrepute when an employee makes inappropriate, insensitive or racial comments or remarks on social media, even if it does not have anything to do with the employer.
“Even if you are posting something on social media in your personal capacity, outside of ordinary working hours or whilst using your own personal devices, if that post can be construed as inappropriate and a link can be drawn between that person and their employer, the employer has the right to take disciplinary action,” Wessels explains.
Each case has to be determined based on its own merits; however, employees stand to lose more than just their jobs or reputation when the Prevention and Combating of Hate Crimes and Hate Speech Bill (the Bill) passes into law. The Bill provides that an act of hate speech is one which is perpetrated by an individual who intentionally publishes, propagates or advocates anything or communicates to any person in a manner which could reasonably be construed to demonstrate a clear intention to:
According to the Department of Justice and Constitutional Development, the Bill will:
Critics have called the Bill unconstitutional, stating it infringes on the individual’s freedom of expression, which is enshrined in the country’s Constitution.
But Wessels says, although the Constitution makes provisions for freedom of speech, the country’s laws are not absolute and need to be balanced against each other.
“Freedom of speech may be protected, but that protection does not extend to hate based on race, ethnicity, gender or religion. One has to look when talking about different people’s constitutional rights to which extent that constitutional right potentially impacts on someone else’s rights - namely the right to dignity.
“Employers, in looking to mitigate the possibility of harm or loss occurring as a result of employee’s comments or remarks should actively educate their employees on the company’s social media policies, and if none are in place move towards having such policies in place. Employers should also regularly conduct workshops on disciplinary codes, grievance procedures, as well as the use of social media and behaviour acceptable in the workplace. And employees should think long and hard before pressing ‘post/tweet',” Wessels concludes.
How times have changed. Social media marketing has evolved from being a bit of fun on the side to an absolute must-have for all businesses that want to remain relevant. Social media isn't just fun and games, though: it gives you access to personal information like never before. The big question is how the rules of PoPI apply when using social media for marketing and client service platforms.Whose data is it anyway?
The main impact that PoPI has on your social media activities is that all data collected from the various platforms is governed by the Act, even though the information was publicly available. If, for instance, you grab a client’s phone number from LinkedIn to implement his or her investment, you will be obliged to protect the data thereafter.
P is for privacy (and policy)
Some customers unwisely expose their personal information such as their identity numbers on customer service pages. It’s essential to remove the information immediately when this happens and start up a personal conversation by phone or email. The process of switching to a private conversation needs to be very clearly incorporated into your company’s social media policy. And, if a third party such as an ad agency manages your social media pages, it’s essential that they’re aware of the Act and abide by the principles of privacy.
Tweeting under the influence
One of the Act’s aims is to ensure that personal information is used only for its original purpose. This affects the rights to the use of the data on influencer’s followers. Although you may pay an influencer to promote your brand, PoPI regulates that their followers’ data cannot be used for other marketing purposes. On a related legal note, it’s important to specify who owns the content that influences post. It’s also essential that they clearly display that they are being paid to market the company or brand.
Beware sudden lane changes
Another PoPI challenge comes when a business changes how it uses a particular platform. For instance, a Facebook page which was initially used for customer service queries may, over time, evolve into a sales platform. Clients can easily unfollow you if they don’t want the sales information, but PoPI says that the onus is on the business to first gain permission from an individual. In short, businesses need to communicate upfront that by using the platform for customer services, customers grant the business permission to send them different kinds of information.
This also relates to the data gained from competitions on social media. Participants need to know that by entering the competition they grant the business the right to send them marketing material. Alternatively, the data should be destroyed after the competition.
Thou shalt be hacked
Another of PoPI’s objectives is to ensure the safety of customers’ data as security breaches are forever on the increase. A recent survey conducted in the US by PWC showed that 90% of large organisations suffered a security breach in 2018 and that 59% of employees steal proprietary data when they quit or are fired.
It’s no longer a question of whether you’ll be hacked, but how you’ll be hacked.
McDonald’s corporate Twitter account was hacked, and a message posted calling Donald Trump a “disgusting excuse of a president with small hands.” McDonald's made a public apology, despite a generally positive response to the tweet.
So, be sure to check the company’s security settings on each platform and use excellent anti-virus software. You should also scan and decode links to make sure they’re the real thing and adopt a very strong password policy.
Big data can’t be personal
Big data analytics has helped many businesses strike a balance between optimising their marketing efforts and not annoying customers with unsolicited communication. However, in order to continue to maintain this balance and provide customers with the information they want, they do need access to as much data about their customers as possible. The trick is that a lot of this information is personal, meaning that the process of analysing data may not be in keeping with PoPI.
Don’t panic, though. Businesses can still get excellent results from analytics without viewing personal information. There are excellent software solutions which hide sensitive data from the analysis but still yield very useful results. Businesses can also implement asset control so that only those with the right permissions can access personal information.
Clouding the issue
One of the most interesting aspects of PoPI to consider is the offshore storage of data where PoPI doesn’t apply. If you’re a Facebook user, for instance, your data is most likely stored in Forest City, North Carolina – a place which has the dubious distinction of being home to more computer servers than people. (Cloud hosting is also tricky with regards to PoPI but that is a topic for another day.)
A word of warning for individuals
On a personal note, do remember that if you’re active on social media and publish personal information, you won’t be able to turn to PoPI or your constitutional right to privacy if the information gets into the wrong hands.
This article has detailed just a few of the ways in which PoPI impacts social media… telling the whole story would fill a lengthy tome! That’s what it makes a lot of sense to appoint a PoPI compliance officer to work with a specialised lawyer and IT provider to structure a system and determine policy and procedure to ensure your company is compliant with PoPI. Social media isn’t a game anymore.
LINDA GRAHAMFinancial Planner at FinCommunications
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