How to find a divorce lawyer in Cape Town, South Africa

Minor child's right to legal representation

In any legal matter both parties are entitled to legal representation.  That is each individual’s constitutional right.

If a party in a criminal case cannot afford a legal representative, the court offers them legal aid.  To qualify for legal aid you have to earn under R6000.00 per month.

Even in divorce matters the court bends over backwards to allow each party legal representation.  A party has the right to launch a “Rule 43” application and in it to ask the court that the other party contributes towards his or her legal fees.  The courts almost always allow the contribution if justified.

The case of FB and Another v MB 2012 (2) SA 394 (GSJ) involved a father and his daughter as first and second applicant applying to court against the father’s ex-wife to change a divorce order.  The divorce order stated that the Respondent (mother) had primary residence of the daughter with the father’s reasonable contact to the daughter (second applicant).

The applicants in their application wanted to change the divorce order so that first applicant, the father, had primary residence of his daughter, second applicant.  He wanted to relocate to Portugal and wanted to take his daughter with.

In terms of Section 14 of the Children’s Act 38 of 2005 every child has the right to bring and to be assisted in bringing a matter to court, provided that the matter falls within the jurisdiction of that court.

In this case the applicants were successful in asking the court for an advocate to be appointed to represent the second applicant, a minor.  The court found that in this case one had to look at the best interests of the child.  The best interests of the child would not be served if that child was refused legal representation.

The court found that a request for a legal representative by a child would only be refused in exceptional circumstances in the present case.

In my opinion this was the correct decision.  It is every individual’s right to legal representation.  A minor in a legal matter usually cannot afford financially to appoint a legal representative.  That duty to provide legal representation then falls on the court.

Related Articles

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Change divorce order without court application

Child custody to the father

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