Old Mutual On The Money
Old Mutual On The Money
Child Maintenance in South Africa - A lawyer answers the burning questions
With so many single-parent households in South Africa, child maintenance is always a hot topic. But who is responsible, and who isn’t? Our Head of Financial Education, John Manyike, sat down with Founder and MD of Mashitisho Attorneys, Kholofelo Mashitisho, to get the legal low-down – and you’ll be surprised to hear what the law says!
Thanks for listening! Interested in getting more financial education? Visit our website for free resources. You can follow us on Twitter, Facebook, Instagram, TikTok, and YouTube.
Old Mutual 00:00
Welcome to the On The Money Podcast with John Manyike.
John Manyike 00:04
Today, we're joined by a real lawyer - not a witch that bewitches - but a real lawyer. So, we're going to focus on maintenance. Let's start by establishing the credential, because some people you say, ah, no, we want to hear. Okay, so just tell us a little bit about your academic background, your experience, and so on.
Kholofelo Mashitisho 00:25
So, I got my LLB from the University of Free State. Then I did my articles in Pretoria at a small firm, we were dealing with maintenance, a lot of family law. And then from there onwards, I went to do my Masters in International Trade Law. I specialize in commercial transactions, and then started my firm about four years ago.
John Manyike 00:45
Yeah. So, because today we want to focus on maintenance, because unfortunately, fathers at times, are a flight risk. Even this morning, a colleague of mine was sharing about a friend of hers, who's pregnant. She hasn't even given birth, but already the guy has said, on your marks, get set. And, you know, he's nowhere to be found.
Kholofelo Mashitisho 01:07
I have a client exactly. When she approached us, she was still pregnant. And I said to her, unfortunately, I can't help you. She was eight months pregnant. I said, you need to come when the baby is born.
John Manyike 01:15
She said she wanted to file for maintenance -
Kholofelo Mashitisho 01:23
- while she was eight months pregnant. I said, no, no, no, wait. Come when the baby's born, then we can talk. The baby was born on a Tuesday. And I'm telling you this specifically, because Friday we got pictures, baby's born. I'm coming on Monday.
John Manyike 01:30
Yoh, it is rough.
Kholofelo Mashitisho 01:39
Because she knew from the get-go that throughout her pregnancy, she was not going to be supported. The child was not going to get maintenance. And she obviously wanted to preempt any costs that are going to be, you know, with regards to the birth, because you can actually request birthing costs.
John Manyike 01:48
Yeah.
Kholofelo Mashitisho 01:49
Right. You can request that in maintenance.
John Manyike 01:50
Wait, wait, wait, so you're saying you can request birthing costs?
Kholofelo Mashitisho 01:54
Yeah, so birthing costs. So, you can... there's - I wish we had the maintenance form here, but you can request and say, this is the cost I've incurred as a result of my birth.
John Manyike 02:03
After you've given birth, you say, yes, these are the expenses I've incurred. You know, because births are expensive in hospitals.
Kholofelo Mashitisho 02:09
Births are expensive, exactly.
John Manyike 02:10
So, if they were charging, say, R35 000 per night, or then you put it together.
Kholofelo Mashitisho 02:15
And then you put it together and you say, okay, for five days I was here. That's how much I paid. Half, he needs to pay half.
John Manyike 02:20
Goodness. All right, so maybe let's start at the top. Maybe school us a little bit, what is the law that governs maintenance?
Kholofelo Mashitisho 02:28
For the layperson DIY, the mother who's saying, “Listen, I want to get maintenance.” How? Where do I start, right? So, I'll tell them, go to the maintenance court, get the form. If you can't go to the maintenance court, it's online. Google it. Google “Maintenance form”, it's there.
John Manyike 02:43
So, you can actually download the maintenance form on Google.
Kholofelo Mashitisho 02:45
Yes, of course on Google. It'll take you to the Department of Justice website. Then there's like different forms. But the first one, I think, they even say MNF form A, that's the maintenance form.
John Manyike 02:58
All right. So, you can fill it up. Can you submit online or you have to…?
Kholofelo Mashitisho 03:00
No, no, no.
John Manyike 03:02
You still have to.
Kholofelo Mashitisho 03:02
You have to go to court. You have to submit it, you have to give it to the clerk of the maintenance court, and you have to attach the child's birth certificate, your three months bank statements. I think it's three or six months bank statement. Let’s just takes six months. Because sometimes, you know, it varies, court to court. You have to take your pay slip. So, six month pay slip. If you don't have a pay slip, don't put it. It's fine. You need to take your child's expenses. So, that's what I always tell to clients, you know, when you come, come to me with what you want. So, why you want it? So, you're telling me the child, the milk costs this? You're telling me that the school fees cost this? You come with all that information: statements, invoices, slips. I mean, I had a mother once that she used to do her child's groceries specifically on Sixty Sixty only. And I'd get emails every week when she's doing child, you know, milk and all of that. I'll get that. Because she wanted me to keep track of the child's expenses. I mean, child was still a toddler. So, then you'd submit that. And then you'd also submit, for instance, if you have a previous order, right. So, for instance, a divorce order, or if you have actually or maybe a settlement. So, normally a divorce order will be attached to settlement agreement. Settlement agreement will have a maintenance portion of it. If you have a maintenance aspect of it, that says this matter will be referred to the maintenance court, you put it in, right. So, it's going to be quite a lengthy, you know, document. Then you put your ID and, yeah, I think, you know, just on the top of my head, those are the documents. And you take that to the maintenance court and then the process starts.
John Manyike 04:32
But why is it, unless if it's me, why is it that majority of people are summoned by the maintenance courts are mostly men?
Kholofelo Mashitisho 04:39
The woman is a primary caregiver. I mean, I say this, and I don't want to be gender biased, but between the ages of birth till four or even five, the mother is looking after the child, right. The mother's breastfeeding. The mother is doing this, the mother is making care of this. So, I really, actually, I don't even, I can't even, top of my head even think of a client that has come as a male to say, “I want child maintenance for my child.” Females, they are the primary caregiver for a certain amount of time of the child's life. After that, then you get males who say, no, I want custody. I want access to the child, I want this. And then that's a different, obviously, conversation you have with them. But men normally come for access and contact, women maintenance.
John Manyike 05:24
Yeah. Can a father refuse to pay child maintenance?
Kholofelo Mashitisho 05:40
No, they can't. Unfortunately, Children's Act, both parent’s rights and responsibilities are equally shared between both parents. So, they cannot refuse. If two people are together, two people are intimate, and a child is born, you must know that the recourse of that, the consequence of that is maintaining the child.
John Manyike 05:50
Yeah, all right. So, what do maintenance costs consider in child maintenance cases?
Kholofelo Mashitisho 05:55
So, they look at the affordability, they look at the expenses of the children or the child because affordability, remember, I could be as a woman and I own R50,000. You are coming and you own R20,000. I'm taking you to maintenance court. They will look and say, okay, what is the ratio line? Ratio line would be like what? A third, right? So meaning that I'll have to pay according to my apportionment of my income and you will have to pay apportionment to your income.
John Manyike 06:21
So, in other words, there's a particular child maintenance formula that they use.
Kholofelo Mashitisho 06:26
Definitely. For instance, there's the first line, it's called lodging. Lodgment, Housing, Lodgment, you know, that's the first expense that they look at, and a child is a third of your expense. So, if you're paying a rent of R6000, you'll automatically put R2000 because it's a third of your lodging costs. That will be apportioned to the child.
John Manyike 06:47
Okay. Can a father say, I mean, and I'm asking this because I often hear this type of explanations, or call it excuses, where a man says, no, but I've got too much debt. I have, you know, sometimes we find the person that's got two cars and they live in an expensive suburb and they say, ai, but I've got debts.
Kholofelo Mashitisho 07:08
John, you know, what I would do now, I'll attach a pension fund.
John Manyike 07:12
Attach a pension fund.
Kholofelo Mashitisho 07:13
I'll take your asset and I'll sell it.
John Manyike 07:17
Hmm. Explain that, please.
Kholofelo Mashitisho 07:18
I mean, there's processes to follow to get to that point, right. As an attorney, there are processes. But you have a car, you have an asset. I will then ask, why are you unable to downgrade that asset to increase your income or what you have, all the money that you have. How are you able to get a car that you pay R15 000 or R16 000 per month but you can’t pay maintenance?
John Manyike 07:39
Yes. So, you're saying a mother is entitled to target your pension when you use that excuse for example?
Kholofelo Mashitisho 07:47
The mother can. Look, I've done it before. It was last resort. The guy wasn't paying maintenance for about five, six years. And, yeah, we just went and we garnished his pension fund. Another way would be to garnish, they call it an annulment. They do garnish their salary. Now, every month what they do is, you'll get your salary, but on your pay slip you'll see it says maintenance order. So, there's processes to follow to get there, right. But that is if the order is there, this person or the partner that has the order against them is not paying maintenance, yeah, you just ask the court, can we please garnish? It's not easy, I can tell you that. But it's doable.
John Manyike 08:31
Yeah. So what I'm getting from you, it's like the child's best interests are first priority.
Kholofelo Mashitisho 08:38
Paramount.
John Manyike 08:39
So, even if it means you’re going for your pension to pay maintenance, they will go there. Which leads me to my next question. Is the maintenance of a child the responsibility of biological parents only?
Kholofelo Mashitisho 08:53
I love that you asked that question. Because if I come to you, John, and you don't work, but you have parents, your parents are doing very well. Your dad has taxis, he has companies, he's doing well. You have come to the court to say, I cannot afford to pay maintenance. Shap.
John Manyike 09:13
You go to the grandparents.
Kholofelo Mashitisho 09:15
We touch their paternal grandparents and we take them to maintenance court.
John Manyike 09:19
So, let's say I have an 18 year old son who's unemployed. He's still at school, he impregnates a girl, but obviously he's unemployed. Can the mother garnish the grandparents in this case, myself, because I'm working and my son is not working?
Kholofelo Mashitisho 09:36
Your question is twofold. The 18 year old doesn't work. They don't have a job.
John Manyike 09:41
Yes.
Kholofelo Mashitisho 09:57
The Maintenance Act says you stop maintenance at self-sufficient age, right. And that's one of the factors here. So, you're not, as an 18 year old, self-sufficient. So, you go and you claim maintenance from your parents as an 18 year old, take that money, and pay your child's maintenance, right. That's step one. If obviously you're in a home that you know that's not possible, your parents, you can't, then, yes, I, as a mother of your child, can go and approach your parents” and say, “Listen knock knock . I'm here, can I please have maintenance? " Definitely.
John Manyike 10:20
Okay. So, grandmothers may be liable to pay maintenance on their grandchildren.
Kholofelo Mashitisho 10:24
And you know who else is liable? Wives.
John Manyike 10:27
Whoa, whoa, whoa, whoa, whoa.
Kholofelo Mashitisho 10:29
Yes. If you're married in community of property and your husband has a child outside of the marriage, whether it was before or during the marriage, doesn’t concern me.
John Manyike 10:39
I want to paint this picture, and I like this because we're going somewhere and it's easier to use examples. Okay, as a guy, I have a wife. My wife is working and I've lost my job. I'm not working. But on top of that, I go and have a child outside. The mother of that child, now realizing that I'm unemployed, but my wife is employed, and we're married in community of property. So, what you're saying is the girlfriend I have outside can go to the maintenance court and say the wife must pay maintenance for the child that the husband made with - I don't even want to label them with names, but I mean, sometimes people call them sidekicks and all that, side chicks or whatever the case is, or steady. So, a wife will pay because you're married in community of property.
Kholofelo Mashitisho 11:25
There's a joint estate. So you, as the steady, are attacking the joint estate. So, the joint estate includes your wife's pension, your wife's salary, your wife's - whatever she's making.
John Manyike 11:39
Yeah. So, the wife will pay. So, the husband, you need to manage your husband not to make more children because otherwise you're going to pay more.
Kholofelo Mashitisho 11:47
Exactly.
John Manyike 11:50
You know, I think for me that just highlights how the law takes the best interest of the child seriously. I mean, they are priority.
Kholofelo Mashitisho 11:57
Definitely. And this is not even maintenance. Whenever we sit down and we talk about the Children's Act, you will see it goes way deeper than just maintenance.
John Manyike 12:10
So, now let's talk about maybe fathers who are denying a child. And he says, “Nah, I know, but I was not alone, maybe somebody assisted me. Therefore, I don't think this is my child.” And then…
Kholofelo Mashitisho 12:23
Oh, that's the best excuse. Oh, you know, the men, to frustrate the court, to frustrate the system, they always say, no, I'm denying paternity, right. And what do you do? No, you have to allow the paternity test to be done. Unfortunately, in our current court system now, the, you know, I think it's the NHI - the department, basically, the lab does the paternity test. That's for women that cannot afford private, you know, labs. And that can take months. That's when they know they can frustrate the system, right. You know, most times you'll just tell the court, you know, it's fine, your worship, we'll get a lab, get a private lab. You go pay 2.5. He will be forced to go with the child, even if they go separate days, doesn't matter. You'll just tell the lab, obviously, they'll know you do the paternity and then you come in and present that. But, yes, that is a man's favorite excuse of why you shouldn't pay maintenance.
John Manyike 13:20
Who pays for the DNA test?
Kholofelo Mashitisho 13:22
The one who requests it. Yeah, it's a lot.
John Manyike 13:26
All right. Okay. Moving forward, why do you think some women might be feeling discouraged to actually go to maintenance court?
Kholofelo Mashitisho 13:38
Yoh, it's a very embarrassing process. It's a very dehumanizing process. If you go into a maintenance court in the morning, it's painful. You start because you want to be first. So, when you want to be first, you have to be number one. When the court opens a door, you're there, so that you - because it's listed by who's there first, right. So, if 60 women are in court or are applying for maintenance that day, you want to be the first person. You are there half past seven in the morning, you're sitting and you're waiting for your turn to be called, right. It's a full day. It's not a process that is quick. They go through the papers with you. The clerk will sit and criticize every single amount. You, as a mother, knowing, I've spent my last R100, I don't take care of myself, I don't buy myself clothes, I barely buy myself toiletries to look after this child. And they’ll sit and they’ll criticize every single amount saying no, where is the proof of this?
John Manyike 14:38
So, it's the emotional torture.
Kholofelo Mashitisho 14:40
It's the emotional torture. It's the embarrassment, right. Number two, it's the process. The process itself is a long process for you to get from having drafted your documents, having gotten a date, to still have to go and serve him. And remember, maintenance papers, you have to serve him personally. So, if you can't find him, you need to look for him, right. From there onwards, then you find him, you serve him. First appearance, he doesn't come to court. You're sitting there, remember, you've been sitting there the whole day. Your matter is now called at half past one. Because there were other people before you. Now, you have to explain to the maintenance officer why he's not here. I don't know, but he was served here. The papers he was served. Then they'll give you a subpoena. Subpoena is now saying he has to attend. If he doesn't attend, we can do a warrant of arrest. Now, you must still go and serve him that document.
John Manyike 15:31
Okay. And it's the sheriff that does the serving.
Kholofelo Mashitisho 15:34
Oh, no, no. So, not just the sheriff. You can't do it yourself, but you can get the police officer. So, any police station, you take them. You go with the documents saying, “Hi, I have these documents, I need to go serve the father of my child.” They will gladly help you and they will do.
John Manyike 15:47
They enjoy that one.
Kholofelo Mashitisho 15:49
Right, you know, when they walk in there into your employment and they’re there, and they just like "You've been served, here you go, sign".
John Manyike 15:56
And they don't put that in an envelope, it’s open.
Kholofelo Mashitisho 15:59
They don't put it like, they don't ask you to come down. They come to your office where you'll be there and they'll warn us, they'll give you and say, we're looking for X, Y and Z. Because he must be served personally. So, I think that's where father's now realize. Okay, this is embarrassing. Let me try and settle this thing quickly, quickly, quickly. But if you find you know a man that he doesn't care, he'll be served by the police. He won't pitch again, right.
John Manyike 16:23
So, after you do - okay, first appearance, you don't pitch. Then you get subpoenaed.
Kholofelo Mashitisho 16:28
Then there's need to be a subpoenaed.
John Manyike 16:29
If you don't appear after a subpoena, then warrant of arrest is issued for the father who's or whoever, if it's in the case of a mother, and so on.
Kholofelo Mashitisho 16:28
Perfect. So then, and I'm going to give an example. I had a client, he didn't pitch first appearance. And we managed to get the subpoena on the second time, right. Because we had proof you received it. You tell us when you're coming. You're not coming. Now, you're telling us you're not in the country. Where are you? What's going on? So, then we got a warrant of arrest, and we gave it to the police people at the airport. As soon as he lands, right, you scan your passport when you get into the country. They scan and they see warrant of arrest. Abhuti, let's go.
John Manyike 17:14
Okay. How about women, for example, who have a child, but the biological father is not a citizen of the country. And they say he travels to Zim or Swaziland or Namibia or wherever.
Kholofelo Mashitisho 17:30
And those are the frustrating matters.
John Manyike 17:31
How do you deal with such cases? Because there are mothers who say, but their biological father is not a citizen, or at that time say, they are not married. How do you secure the child's maintenance in those instances?
Kholofelo Mashitisho 17:44
John, that part of it is a difficult one to say or to even you know navigate, because he's not here. He needs to be served. He doesn't have family here. There's no parents. You can go back and request them. Honestly, and this isn't my practical experience, it’s basically impossible.
John Manyike 18:03
I've often had women complaining that they have a maintenance order. The guy paid for a couple of months, and now he's gone AWOL. What should happen in this case?
Kholofelo Mashitisho 18:14
You approach the maintenance court. You go back to maintenance court. And, you know, I'm very finicky and pedantic, you know, pedantic with information. So, you have your table, you have list. June, he didn't pay. July, he didn't pay. Take it to the court, right. And then that amount of money will then be enforced in a different way. Remember I told you earlier about my pension fund? So, that one was six years, remember? Imagine he didn't pay for six years. He got an order to pay in year one. And in year one, the order even said, “On the anniversary of the order, it must go up by 10%.” So, now you add all those amounts together and you get a nice round figure, right. And then that's how then we were able to then attach the pension fund. We got an order to say pension fund, and then garnish. So, for the remaining years of this child's life, till he turns 18 or self-sufficient, or, you know, whatever the arrangement is, we garnish that amount, that one point something. Remember, we've increased. And the one that's outstanding debit order from pension. We take it from the pension fund like that, yeah.
John Manyike 19:16
Goodness.
Kholofelo Mashitisho 19:16
So look, there's different ways to enforce the order, but the courts rarely or, you know, will ever go the criminal route. That's last resort for them. That for them, they'll tell you, sister we can do everything for you. We can give you this. We can even find us a house. We can even tell the sheriff to go attach the house, sell it and give you the proceeds, right. That can do. But it's always to the amount that is outstanding.
John Manyike 19:42
All right. I've also often heard fathers complaining that they're being denied access to the child by the biological mothers because maybe they are not able to pay maintenance. For whatever reason, rightly or wrongly, whether the guy is employed or unemployed, what are the rights of the fathers?
Kholofelo Mashitisho 20:01
So, maintenance and access two different courts. Actually, let's start there. Access and contact is dealt with in the children's court. Maintenance is dealt in the maintenance court. You cannot conflict the two. Just because he's not paying maintenance, right, does not give you the right to refuse access. That man can take you to children's court and say, she's not giving me access. But in children's court, you can't wake up and come into children's court and say, but he's not paying maintenance, so, I can't give him access because he's not paying maintenance. No, the court does not entertain maintenance when it comes to access at all, like zero. They'll tell you, you're in the wrong court. Go deal with your issues of maintenance in maintenance court. So it's not allowed, you can't.
John Manyike 20:50
Can you tell us a little bit more about the mother who was in prison recently for denying a father access because of...
Kholofelo Mashitisho 20:56
So, that was a very interesting matter. And it actually set a precedent. There was a divorce. There was a rule, an interim order. I think it was rule 43 interim order that was done. Interim order is an order that you get while you're going through a divorce. So, while you're going through a divorce, you can ask the court for relief. I need access to my child on ‘X’ amount of days. I need, you know, spousal maintenance. I need maintenance for the child, right. So, he had received an order that says, “You have to pay maintenance to the child or to the mother for the child of ‘X’ amount.” You can see the child every alternative weekend, right. He continued paying maintenance. He was paying, you know, he was diligent in his. I mean, he respected the court. The mother on this side would when it comes to access, nothing. When it was time to pick up the child, phone is off, when it was time to do anything, the child hadn't seen the father for months, if not even, I mean, the entire process of the divorce. What then, you know, the attorney did was they then applied for what they call a contempt of court. So, the contempt is important because you're not being imprisoned because you're not giving access. You're being imprisoned because you're in contempt of an order that exists. So, then they did a contempt of court application that, no, this woman is in contempt, but she's in contempt not once, not twice. It's ongoing. You know what I mean? We're sending them her attorneys emails, sending her, you know, there's proof: emails, WhatsApps. You know, there was everything to sustain a solid contempt of court case and then, yeah, she was imprisoned for that.
John Manyike 22:28
So, these rights of fathers, are they the same for married fathers and unmarried fathers?
Kholofelo Mashitisho 22:33
They are.
John Manyike 22:32
Okay.
Kholofelo Mashitisho 22:33
They don't differentiate. No, no. The Children's Act, yeah. No, no, no, they used to, you know, have a whole out of marriage, wedlock. They used to have different definitions for it, but now, no, they don't.
John Manyike 22:43
It just reminds me of something slightly unrelated matter. I'm saying slightly unrelated because I'm going to digress a little bit. Where an unmarried father says, I want the child to carry my surname, but then the mother says, no, but we are not married. And then people are bringing culture and say, no, but culturally you can't. But legally, what does the law say?
Kholofelo Mashitisho 23:07
Nothing.
John Manyike 23:07
The law says nothing.
Kholofelo Mashitisho 23:09
Is my child carrying your surname to the best interest of the child? And if it is, tell me why?
John Manyike 23:16
Yeah. So, you have to convince the court.
Kholofelo Mashitisho 23:18
You must convince the court that it is the best interest of the child to carry my surname.
John Manyike 23:23
Up to what age should a parent pay maintenance? Again, sometimes you hear fathers say, no, but-
Kholofelo Mashitisho 23:30
Self-sufficient. You have a 32 year old that is asking for maintenance. You have a 40 year old that's asking maintenance. You're not self-sufficient, you're not self-sustaining. I don't have a salary. I don't have…
John Manyike 23:40
You're saying a child that's 35, that's unemployed. We already have a problem, a crisis of our youth unemployment, where 66% of young people in this country are unemployed. So, you say somebody can be 35 years or even 40 years old.
Kholofelo Mashitisho 23"54
It’s 18 or self-sufficient, whichever comes last.
John Manyike 23:56
Yeah. So, okay, a person is over 18, but they are unemployed. So, that person must still-
Kholofelo Mashitisho 24:04
I defended a father who had twins and they were in varsity. And they took him to maintenance court to pay their school fees, university fees. They were in university, and the mother could pay a portion, and they were like, yeah, but we need this. We need school fees. She can pay living expenses, but you come with school fees.
John Manyike 24:20
That part I understand for the children in university. I'm talking about a grown man of 40 years sitting at home. He doesn't have a job. So, you're saying you can still expect maintenance from the father?
Kholofelo Mashitisho 24:32
From his parents, yeah.
John Manyike 24:35
So, if this guy doesn't want to work?
Kholofelo Mashitisho 24:37
I mean, he can say, nah, I don't have a degree, so how do I get work? You know, there's different. Like, look, but I'm telling you, the court, the court's discretion will then be used. The court will then be like, okay, we'll give you this, but can you, you know, what's the plan here? You can't be milking your 65, 70 year old pension parent just because when you don't want to go and work, they will definitely use a discretion there. But yes, 40 year old uncle that's sitting on the couch can definitely apply for maintenance.
John Manyike 25:09
Okay, so if a person receiving a child's maintenance happens to abuse their maintenance contribution from the contributing party, what can the aggrieved party or the court do in such a way?
Kholofelo Mashitisho 25:24
So, and I'm going to refer back to my experience. Same thing happened. We just requested that the contributions be provided directly to the supplier, to the school. And then anything to do with groceries should be given in the form of vouchers, right. So, vouchers being Pick n Pay, Checkers vouchers. And because, yes, you know, the client on the other side was using the money for, you know, should go out, should live her best life on the maintenance. You know, she'd get her hair done. You know, she was, she was, you know. And then on the other hand, the child is suffering, and it was evident, the child was not eating. You could see the child's. But now and then the person has a frontal wig and then the father's like, what's going on? You always slayed up, what are you doing with the money? And funny enough, that's when the woman will come and say, no, I want more. Because you can see he's doing this. But I mean, again, cost discretion will come and say, but what are you doing with the money? How are you using it?
John Manyike 26:19
Okay, at what age can a child refuse to see their parents?
Kholofelo Mashitisho 27:38
So, there's something called "Voice of the Child" assessment that is done by family advocates, by psychologists where they sit down the child, the social worker or the psychologist or if you want to go private, you can go pick your own private person, go sit down with the child and they'll talk. They will understand you know what's going on. Have you seen your daddy? Where's your daddy? Why haven't you seen your daddy? Is mummy ever home? What is mommy doing? You know what I mean? And the child will obviously have an opinion. You look at the child's age and maturity levels. Children's Act does say the child's opinion does matter. If the child of, you know, you know, sufficient age and the age now is twelve you can start at ten. But anything above twelve, the child has an opinion. So, they will do the voice of a child assessment and then from there onwards that can then be provided to the court. You cannot force a child to see the other parent. Just like you cannot force a man to see his child. You cannot force a mother to be a mother, right. You can't, but you can force maintenance.
John Manyike 27:25
Yeah, okay. Related follow up question, what constitutes an unfit parent?
Kholofelo Mashitisho 27:31
So, abuse, drug abuse. There's a client that I was in court the other day and the father was trying to have my client unfit because she had bipolar. No, that's not, that doesn't, that doesn't determine-
John Manyike 27:45
Because it's a medical condition.
Kholofelo Mashitisho 27:45
It's a medical condition. Is she taking a treatment? Yes. Can her psychiatrist, you know, say that she's well and okay, take over the child? Yes. So, you can't use that. It's abuse. It's violence and it's more physical abuse. It's more, emotional abuse is also a bit very difficult towards certain because kids lie. It's not, let's not take away from that. Kids lie. But also social worker will then get involved. Social workers will then do an assessment on the child. Social workers are prime individuals when it comes to issues of unfit parents, right. Because then they will then speak to the child. They will then speak to the mother and father. Why do you think he's an unfit parent? But things like mental illness. No. It's majority of the time abuse and it's abuse that you catch now. So, you can't tell me that last year smacked the child and the child came out with the blue eye and then I'm only doing the application now to have the parent unfit. And I don't think, you know, people know this but children's court entertains urgent matters.
John Manyike 28:42
Okay.
Kholofelo Mashitisho 28:43
So, if you are a mother or a father and you are suspecting any abuse from the child. If, well, from the father to the child. So, if you suspect anything, children's court can entertain your matter tomorrow. You get there, go to the clerk, and you say, I need to speak to the magistrate right now. And they'll ask you why. And you show them whatever evidence you have, you do whatever you know, and they'll make sure you get that gets done. So, us as attorneys, we call those urgent applications. So you as a layman, they will definitely entertain you. But also make sure that when you approach the court on an urgent basis, it mustn't be because, you know, yeah, make it serious things like neglect. Child neglect is also another one, right. So, the child is with you the whole weekend, you've locked the child in the house with no food, nothing. The child is three, right? Three year olds will talk. I was in the house alone the whole day watching Peppa Pig. Where was your father? Where was your mother? I don't know, they weren't there. That already is a…
John Manyike 29:42
Yeah, it's a trigger.
Kholofelo Mashitisho 29:43
It's a trigger that should already in your head spark "what's going on?"
John Manyike 29:47
Thank you so much for sharing. I mean, it's been quite insightful. I look forward to us talking about other things as well.
Kholofelo Mashitisho 29:54
Definitely. I know there's a lot, hey. I mean, wills, please get your wills done.
John Manyike 30:02
Yeah, so I would like to revisit that pretty soon. But, yeah, thank you so much.
John Manyike 30:07
Subscribe to the Old Mutual On The Money YouTube channel and become a master with your finances.
Old Mutual 30:12
Old Mutual. Do great things everyday. Old Mutual Life Assurance Company Limited is a licensed FSP and life insurer.