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EDITOR’S LETTER


Dear Readers

Today we are discussing one of the most important and valuable “possessions” in the world. No it’s not cars, property or financial investments, it is our Children.

Everyone knows that children are the future, the hope of a nation – an ideology etched into our brains. Yet we still do not treat children or protect them as one would protect and treat someone or something one considers that valuable.

We often think that we have to change the whole country…or world… at once. So often we desperately want to do our part for charity and humanity and do not have the time or opportunity to do just that.

When Mother Teresa received the Nobel Prize, she was asked, “What can we do to promote world peace?” She answered “Go home and love your family.”

It all starts at home. If all parents can set good examples for their children; protect their children’s rights; always love, care for and act in the best interest of their children, the country and the world would be a much better place.

Enjoy the read!

JJR Inc. Team

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ALIP OR FALL, IN THE CLASS ROOM OR HALL


– JD ROBERTSON

One of a parent’s concerns is getting a call from the school principal informing them that Jimmy or Jeanine has misbehaved, but an even greater disquiet would be getting a call informing you that your child has taken a bad fall.

Who is liable and who will foot the bill?

After the landmark case of The Member of the Executive Council of Gauteng Responsible for Education v Carl Pierre Rabie1, South-African law can finally provide a clear-cut answer!

In this case a grade 8 leaner from a well-known school in Pretoria had a bad fall on school premises, during school hours. The court found that a school owes a duty of care towards both learners and their parents. This duty includes that learners should be kept under supervision in an attempt to prevent injury. Should there be a negligent breach of this duty the school would be held vicariously liable for damages suffered.

It should however be noted that the duty of care is a so-called reasonable duty of care. Thus the duty of care would depend on the age of the child and the nature of the school as the main considerations in such a claim.

In the case of State schools the claim is instituted against the relevant governing body, whereas in the case of a private school the claim may be brought against the school itself. Should the school have insurance for such an occurrence, the parents would claim directly from the insurer.

What should be proven?

Firstly, the court must determine what risk of harm a “careful farther” would have foreseen and then determine if the school was negligent in not living up to such standard.

Schools can, however, not be held liable for every accident occurring during school hours. The South-African law does not require a school to employ constant supervision over children in their care. The reasoning for this is found in the argument that a child’s physical and intellectual capabilities can only be developed if he or she is allowed to use his or her own initiative in certain situations. Thus the possibility of risk is weighed against the possibility that the activity is needed for development in determining if the school had incurred liability.

What if a child causes an accident during school hours and while the school should have been supervising him or her?

The South-African law determines that when a child causes an accident in which other people are injured or killed, the victims have a claim against both the school and the child’s parents. In these circumstances the school is held liable due to having failed to adequately supervise the children entrusted into their care.

The most recent example of a case where a child suffered injuries while the school should have been supervising is the Supreme Court of Appeal decision of Pro Tempo Akademie v van der Merwe2 , in March 2016. Here, a school was held liable for injuries sustained by a learner on the playground after he impaled on a steel rod (erected by the school to support recently planted saplings) when he sat on it. The court regarded public and legal policies as chief considerations in determining liability.

In conclusion it should always be remembered that when parents drop their children off at school they believe that their children will be safe. In theory, it should be easy to prove that a school has acted negligently, but as we all know, practice and theory rarely sit alongside the same camp fire. Although the Rabie-case is revolutionary in itself, each and every case will have to be considered on its own merits.

1 Member of the Executive Council of Gauteng Responsible for Education v Rabie (A758/06) [2008] ZAGPHC 71 (7 February 2008).

2 Pro Tempo v Van der Merwe (20853/2014) [2016] ZASCA 39 (24 March 2016).

THE VOICE OF THE CHILD DURING THE DIVORCE BATTLE


– Chazanne Grobler

“There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they can grow up in peace.”- Kofi Annan

In the divorce battle field the children have often become the prize of the victor. Disregard is given to their welfare and their rights are not considered- as long as the winner takes it all. The views of the minor children were often disregarded in the past, but with the enactment of the Children’s Act 38 of 2005 changes are slowly but surely taking place. Children are no longer only to be seen and not to be heard.

Throughout the Children’s Act (hereinafter referred to as the “Act”) provision is made for the solicitation of the children’s views. Firstly section 10 of the Act provides that:

“Every child that is of such an age, maturity and stage of development as to be able to participate in any manner concerning that child has the right to participate in an appropriate way and views must be given due consideration.”

The Act therefore specifically determines that serious consideration MUST be given to the sentiments of the minor child. The weight that is attached to the view of the minor child is influenced by the age and maturity level of the child in question. Parents in divorce proceedings are often confronted with a situation where the minor child states that he or she wishes to stay with the specific parent. Parents involved in divorce proceedings must take cognisance of various factors that the court will consider, and this does not entail that the voice of the child is not heard. The views of a child is very important, but is not the only factor used to determine the primary residence or contact rights.

The Family Advocate acts as an advisor to the court and must factor the views of the child in their recommendation. It happens that under the heavy caseloads of the Family Advocates the view of the minor child is not always presented in the best manner possible. It can be inappropriate to use the report by the Family Advocate as the only source of the view of the minor child. The Court, as Upper Guardian of minor children, must ensure that the sentiments of the minor child are taken into consideration. In the recent case of B v B (18251/2015) [2016] ZAGPJHC 49 is a clear illustration thereof. The parties in B v B divorced during 2008 and primary residence was awarded to the Respondent, the mother of the minor children. During the course of 2013 the Applicant, the father, requested the Family Advocate to re-evaluate the position regarding the residency of the minor children. He did this because both the children had over some time continued to express a desire to reside with him.

Both parties in this case are good parents and the issue before the court was whether the applicant’s contention that the children have expressed a desire to live with him should be the primary reason for ordering that the status quo be upset. The Honourable Justice Ranchod stated that, “It is evident that the child’s wishes are not the primary consideration or at all decisive in determining his or her best interest. The court must only give “due consideration” to whatever views the child expresses. It does not require deference to the child’s expressed wishes: the duty of the court is to establish what is best for the child, and this may require the court to reach a decision that is different from what the child wants. The child’s wishes must however be ascertained and considered.”

The case clearly illustrated that the wishes must be properly considered in context of various factors and that it all boils down to acting in the best interests of the minor children. The difficulty remains that the adults taking care of the minor children are the only ones that can ensure that due consideration be given to the views of the child in divorce litigation. The Courts are tasked with the duty of ensuring that the views are properly before court, either by way of the Family Advocate report, an independent legal representative for the child/children and even in some instance direct evidence given by the child/children. It is the duty of the adults in the lives of the children to ensure they are given voice.

CHILDREN, THE HOPE OF THE NATION


– Tjaart de Beer

“We cannot always build our future for our youth, but we can build our youth for the future.” – Franklin D. Roosevelt

This ideology was made a priority by the drafters of our Constitution where children’s rights are set out clearly in Section 28 of the Constitution of the Republic of South Africa, Act 108 of 1996, under Chapter 2 – the Bill of Rights and is titled: “Children”. The reasoning behind such strong focus on protecting the rights of the children in our country is because children are among the most vulnerable in society.

Section 28(2) of the Bill of Rights emphasises the importance of the children’s rights and that their best interests shall be of chief concern in every matter regarding them.

Further legislation promoting the best interests of children and making sure their rights are respected, is the Children’s Act 38 of 2005 (“the Act”). This Act looks at the holistic environment of a child and aims to have families stay together and that a child is cared for by parents, family or alternative care if no family exists.

The Department of Social Development in conjunction with UNICEF, Unite for Children, have published three booklets to explain the Children’s Act to children of between 11 and 15 years old and to make them aware of the Act and the protection it provides.

• Booklet 1 briefly explains the rights and responsibilities of children and those of the parents;

• Booklet 2 deals with prevention, early intervention and care; and

• Booklet 3 focuses on the protection provided by the courts and the Act itself.

These booklets can be searched for and accessed via the website of the Department of Justice (http://www.justice.gov.za) or Unicef’s website (http://www.unicef.org/southafrica/resources_8141.html).

The Act covers a variety of areas in which children and those responsible for them are to be governed. However, the recurring theme throughout, is the children’s best interests which is the gauge and main concern to be taken into account when deciding on the outcome of a situation. As long as the scale tips in favour of the best interests of the child, the decision taken is indeed the correct one.

An example of an instance where the best interests were not taken into account is in Susan’s case1. Her parents constantly fought and a social worker had Susan removed from this environment. On face value it was considered to be the best solution, however, after being placed with foster parents she fell ill because of her longing for her parents. It is thus clear that her best interests were not taken into account, because she was not given the opportunity to let her needs, in this matter, be heard. What she wanted was for her parents to stop the fighting, and create a caring environment for the family to live in.

It is important that adults truly take cognisance of the bigger picture when children are involved in any manner. Adults must set the example so that the best interests of children can be promoted through daily acts performed.

Therefore, take a moment from your busy life and reflect on how your day-to-day actions contribute towards making the youth, especially those in your immediate vicinity, ready for whatever the future may hold for them.

“Children participate when they are heard. When the qualities of their character are nurtured and affirmed, this gives them the confidence to try the new and grow.” – Nodi Ipp, Virtues Project.

1 Page 5 of Booklet 1,
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This newsletter 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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