MAINTENANCE: THE GRANDPARENTS DUTY OF SUPPORT

Section 28(1)(c) of the Constitution provides that every child has the right to basic nutrition, shelter, basic health care services and social services.  In addition our common law provides that both parents have a legal duty to support their children according to their means.

A large majority of the public considers the legal obligation of maintenance to only be the responsibility of the parents of the child and that no one else can have the legal obligation placed upon them. This is incorrect.

While the legal obligation to maintain a child primarily rests on the parents of the child in question it is accepted that other relatives of the child have to support the child in circumstances where a parent is deceased or unable to support/maintain the child.

In circumstances where a parent is deceased or unable to support/maintain their children the general rule is that the support/maintenance must always be sought from the nearest relative to the child, and only if that support/maintenance is not forthcoming from that relative, then it can be sought from more remote relatives.

As a result of the accepted common law principles, our courts have held that there is a reciprocal duty of support between grandparents and their grandchildren (Barnard v Miller 1963 (4) SA 426 (C)), and that if parents are not able to support their children, the duty of support falls on paternal and maternal grandparents of the child (Barnes v Union and South West Africa Insurance Co Ltd 1977 (3) SA 502 (E)).

Accordingly in South Africa there can be no doubt that both maternal and paternal grandparents can be required to support/maintain their grandchildren, but it must always be remembered that this can only happen in circumstances where a parent is deceased or unable to maintain their child themselves. In this regard it has been held by some of our courts that grandparents can defend maintenance claims against them by insisting that the claims first be pursued against a parent.

NUNO PALMEIRA

Racially Offensive Remarks

“Subsequent to his Facebook remarks which were construed as being racially offensive, Khumalo was duly suspended from the employ of the Gauteng Department of Sport, Arts, Culture and Recreation and charged for serious misconduct for having “conducted himself in an improper, disgraceful and unacceptable manner”.

Velaphi Khumalo – Politics Web Report

It is trite law that discipline must be consistently applied and as such within the Gauteng Department of Sport, Arts, Culture and Recreation such conduct if coupled with a sense of remorse may only merit a suspension and final written warning.

Maybe there is some balance in the decision, maybe Corporate South Africa has overreacted on these issues. On balance and upon reflection maybe we have regained our sensibilities on this difficult issue.

Ian McLaren

MARRIAGES SUBJECT TO THE ACCRUAL SYSTEM: WHEN TO DETERMINE THE VALUE OF THE ESTATES

In South Africa marriages out of community of property are automatically subjected to the operation of the Accrual System, unless the parties include a specific clause in their Ante-Nuptial excluding the operation of the system. The operation of the Accrual System basically means that when the marriage is dissolved, by death or divorce, the spouse whose estate has grown the least during the marriage will be entitled to claim and receive half of the difference between his/her estate and the estate of the other spouse.

While the Matrimonial Property Act is clear that a spouse’s claim in terms of the accrual only arises when the marriage is dissolved by death or divorce, there has been much debate and varying court decisions as to when the value of a spouse’s estate must be determined for purposes of the accrual.

In 2010 Acting Judge Brassey  found, in his judgment in MB v NB 2010 (3) SA 220 (GSJ), that the operative moment when one must value the accrual of spouses is the moment when pleadings in their divorce action have closed and the disputes between the parties have been crystallised (litis contestation).

The findings of in MB v NB 2010 (3) SA 220 (GSJ) were subsequently followed and agreed with in the decisions of MB v DB 2013 (6) SA 86 (KZD) and KS v MS 2016 (1) SA 64 (KZD).

In 2014 however, Judge Sutherland, in his judgment in JA v DA 2014 (6) SA 233 (GJ,) disagreed with the findings made by Acting Judge Brassey and found that the accrual of spouses should be valued on the date on which the accrual claim rises between the spouses, being the date on which the marriage is dissolved.

On 26 March 2016 the Supreme Court of Appeal finally put the matter to rest in its judgment in Brookstein v Brookstein (20808/14) [2016] ZASCA 40, where it found the Judge Sutherland’s findings were undoubtedly jurisprudentially correct. In this judgment the Supreme Court of Appeal found that the date at which the accrual of the value of a spouse is to be determined is the date of dissolution of the marriage either by death or divorce.

NUNO PALMEIRA

SOCIAL MEDIA LAW: TO POST OR NOT TO POST?

The advent of social media and networking has taken the entire world by storm to the extent that there is now over one billion people using Facebook on a daily basis and over five hundred million registered Twitter accounts.

The Constitution provides that every person in South Africa has the right to equality, human dignity, freedom of religion, opinion and belief, and freedom of expression. However, while protecting these rights is a constitutional imperative, ignorance of the law is no excuse and therefore in today’s day and age, it is now necessary, more than ever, not only to educate the public about their legal rights and obligations, but to educate them about the risks and consequences of publishing, posting and/or tweeting on social media networks.

While social networks on the internet don’t actually form part of a real or corporeal world, they reside in cyberspace and it is important to understand that, in South Africa, whatever laws apply to the real and corporeal world are also applicable to the world of cyberspace, the world wide web, and by extension social media and networks.

Secondly, one must understand that the concept of online anonymity does not exist and is in fact a myth. Every action or step taken online is recorded, falls within the public domain and once taken cannot be deleted or altered by choice. This is relevant when considering how one should use social media networks because any step taken online is automatically recorded in a public domain and may constitute legal acts which may or may not carry risks and obligations.

Any person’s actions, statements and even omissions may lead to them being held legal liable.

DEFAMATION:

When someone spreads a rumour or makes statements about someone which places the person in a compromising or bad light, it is possible that such rumours or statements could be defamatory. Defamation is basically any conduct which damages someone’s public reputation.

South African law protects a person’s reputation against unjustified publications, whether oral or in writing, of anything which could damage a person’s reputation by allowing the person to either claim an amount as damages or force them to stop their conduct (interdict).

Remembering that the laws of the real world apply to the world of cyberspace, defamation can occur over social media networks. Accordingly any statement, publication, post and/or tweet made on a social network may form the basis of legal liability.

It is very important to note that the potential for legal liability doesn’t only apply to the person who initially made the statement. South African law provides that every person that forms part of the chain of publication of a statement can be sued or held responsible for the content contained in such a statement. It is therefore possible to hold a person responsible for re-publishing, sharing or re-tweeting any statement which they know or may reasonably know is defamatory.

A recent example of this occurred where a woman from Pretoria and her husband were ordered by the court to pay R 40 000.00 (forty thousand rand) in damages to the husband’s ex-wife after the couple had made defamatory statements about her on Facebook. In this particular case the husband was merely tagged in his wife’s defamatory posts and the court found this to be sufficient for him to be coupled in the offence of defamation.

Defamatory statements and acts are an daily occurrence on social networks and the public should be cautioned to refrain from making any statement which is potentially defamatory, keeping negative feelings or remarks to themselves and using the full force of the law to defend anyone who is a victim of such behaviour.

TROLLING:

In the world of cyberspace this is now becoming a common occurrence. A “Troll” is a person who deliberately and continually posts provocative or abusive messages to someone which are intended to cause pain, distress disruption and argument. In basic terms a “Troll” can be described as an online bully who feels fulfilment from other people’s pain or distress.

As of 27 April 2013 new legislation has been introduced to protect people from the acts of a “Troll”, among other things. This legislation is known as the Protection of Harassment Act and affords every person the right to initially have an order directing a service provider, such as a social network or cellular network, advise their client to stop the harassment, and failing this a final order can be made forcing the network to hand over the details of the harassing person so that further civil and criminal action may be taken against him or her.

If you are experiencing “trolling” the first step is to report the incident to the service provider. If reporting incidents doesn’t provide a remedy, then you may approach the court for further relief in terms of the Protection of Harassment Act. Below are a few links for social networks where you can report such incidents:

How to report abuse on Facebook – http://www.facebook.com/help/?page=247013378662696

How to report abuse on Twitter – https://support.twitter.com/forms/abusiveuser

How to report abuse on LinkedIn – abuse@linkedin.com

How to report abuse on YouTube – http://www.youtube.com/yt/policyandsafety/

CONCLUSION:

Our world is constantly changing, with it our technology and as a consequence our lives and society are affected by this ever growing change. It is clear that we not only need to educate the public of what not to do, but it is also imperative that we teach them how to protect themselves from the harms of using social media networks

NUNO PALMEIRA