FREE LIPCO CHILD MAINTENANCE WORKSHOPS HELD AT THE END OF JUNE!

Child maintenance is a very sensitive matter as emotional vendettas almost always come to play. Maintenance refers to the obligation of both parents to provide a minor with housing, food, clothing, education and medical care within their means. It is important to remember that parents remain responsible for a child’s maintenance regardless of whether they remarry, enter into a new relationship or have new children to take care of.

 

It is an unfortunate fact that so many parents fail to abide by their maintenance obligation, often leading to the other parent withholding visitation rights. Both are however wrong, legally speaking. According to the law a parent may not withhold visitation rights due to the other parent’s failure to pay maintenance, the law treats a parent’s visitation right and maintenance obligation as two separate legal topics, the one does thus not qualify the other. 

Our Children’s Act 38 of 2005 provide unmarried biological fathers with more rights than before, even in the unfortunate instance where no maintenance is paid. The unmarried biological father will have the parental right to contact and act as guardian of a child should he have been married to the child’s mother at the time of conception, birth or anytime between conception and birth. If this does not apply, the law looks at whether the unmarried biological father was in a permanent life-partnership with the biological mother at the time of the child’s birth, whether the unmarried biological father consents to be identified or proves paternity in court or attempts to contribute to the child’s upbringing and / or maintenance for a reasonable period. Previously this was not the case, leaving an unmarried biological father with very little say in his child’s upbringing. 

The greatest problem in our legal system is the lack of legal education. This is why we waste emotional energy, the time of our courts and our own money on settling a vendetta when there is a different and less traumatic approach to take. The Children’s Act is a prime example of how the law tries to keep family matters out of court and encourages mediation for the drafting of parental responsibilities and rights agreements in section 22 of the Act. LIPCO is a mediation enthusiast, settling 80% of our matters by way of mediation. Mediation is LIPCO’s top priority because we know, from 20 years of experience, it yields the best result.

We look forward to welcoming you to the Free LIPCO Child Maintenance Workshops. Please note that we will make available on our website a copy of the presentation for those who are unable to attend the following three venues:  

LIPCO Office	Date	Venue	Time
Johannesburg	Saturday, 29th of June 2013	GO YE Christian Ministry, No 1088 Nxumalo Road (opposite U-Save),  Mofolo North	11:00 – 13:00
East London	Wednesday, 26th of June 2013	Ministry Alive Church located near Dignity Park, Meisies halt  East London	18:00 PM
Western Cape	Saturday, 29th of June 2013	9 Scheltd Road, Mannenberg (directly opposite Caltex)	09:30 AM

Keeping you informed, 

LIPCO

www.lipco.co.za

An Easy Guide To CCMA Referrals

Employees may approach their bargaining council/ CCMA if they believe their dismissal was either substantively or procedurally (or both) unfair. Substantive means that the reason was unfair (no misconduct, incapacity or operational reason for the dismissal) and procedurally means that no disciplinary processes or hearing took place. Here at LIPCO we hope that you never find yourself in this situation, but if you do, we have compiled an easy guide for your convenience.

Step 1: Within 30 calendar days, complete a LRA 7.11 application form. You may tick the box objecting to con-arb (asking that conciliation and arbitration do not happen on the same day). This is very important! If you fail to do so, you must apply to the CCMA for condonation, giving a very good reason why you are late. This will not necessarily be accepted by the CCMA/Bargaining Council.
Step 2: Send (fax or post by way of registered post) a copy to the previous employer.
Step 3: Send to the CCMA in your area a copy of the application form and proof of delivery to the previous employer (the fax report or the registered slip obtained at the post office).
Step 4: The CCMA will send both the employee and the employer a date to attend a hearing. Our Labour Law says that there must be two procedures (conciliation and arbitration).
Step 5: Conciliation is the first step. A neutral conciliator will aid the employer and employee to reach an agreement. No binding order will be made and no legal representation is allowed.
Step 6: Arbitration is the next step if conciliation is unsuccessful, where a neutral person will listen to both sides and make a binding order. One must apply for arbitration within 60 days if conciliation fails and the objection to con-arb was ticked. Legal representation is allowed during arbitration proceedings.
Step 7: If successful, the applicant (dismissed employer) will be granted his/her wish (reinstatement or compensation for the unfair dismissal).

Regarding retrenchments and unfair labour practices, the CCMA can only do conciliation (no binding order) and arbitration (binding order) must be handled by the Labour Court. In the instance of unfair retrenchment or labour practices, one however has 90 days to refer the matter to the CCMA.

Wishing you a fantastic day,

LIPCO

www.lipco.co.za

THE NATIONAL PROSECUTING AUTHORITY AND THE GUPTA LANDING

Weeks after Vega Gupta’s wedding and our news headlines still echo the landing of a commercial airplane at the Waterkloof Air Force base. A report released on Wednesday found that clearance was based on ‘false pretences’ and that the Gupta family and other public service officers might have manipulated the process. When the Guptas did not get the landing rights they desired, they proceeded through diplomatic channels and may have used undue influence to get their way. Many feel that the Gupta family used their political and economic power to obtain this clearance, but mostly that the clearance was granted due to close ties with the president. 

"This embarrassing episode is yet another example of how a culture of impunity across government allows for the abuses of our state resources by both politicians and private interests," says Agang SA leader Mamphlela Ramphele. 

Has there been an abuse of power or fraud? Waterkloof is a security based area and improper landing clearance is a breach of security. But who will be prosecuted? The minister of Justice, Jeff Radebe, confirmed the South African rule that the National Prosecuting Authority (NPA) has to make this decision. The NPA forms part of South Africa’s criminal justice system and decides who to prosecute without fear, favour or prejudice. 

Did you know that the NPA is not obliged to prosecute someone? The NPA has the discretion to decide whether or not (and who) they will prosecute. But let’s start at the beginning. First one/or the state will open a case at the police. Secondly an investigating officer will be assigned to the new case’s docket, which is basically a folder for collecting affidavits and other evidence. This docket will then be sent to the NPA who will evaluate the situation and may decide: 

a)  not to prosecute if there is not enough evidence to prove guilt beyond reasonable doubt, when prosecuting is not in the public’s interest, plea-bargaining is considered a better option or when the crime has prescribed (most crimes prescribe in 20 years apart from rape, murder, child abuse, human trafficking and treason);

b)      to prosecute if there is a prima facie case (a case that will most likely lead to a criminal conviction in a court of law);

c)       to refer the matter for alternative resolution. 

What do we mean with ‘when prosecuting is not in the public’s interest?’ Here the NPA looks at the nature of the crime, the interests of society and the circumstances of the accused. When considering our Gupta scenario, the nature of the crime includes state security, border control and possible fraud and undue influence. The interests of society are largely at stake here; also as this incident is subject to widespread criticism and people are starting to lose faith in our justice system. The circumstances of the accused refer to previous convictions, criminal background and personal circumstances. 

We thus have to wait and see whether the NPA decides to prosecute and who the NPA decides to prosecute. One thing is for certain, the NPA is not allowed to place anyone’s interests above the truth and proper functioning of the law and our criminal procedure.

Keeping you informed, 

LIPCO

www.lipco.co.za

EMOLUMENT ATTACHMENT ORDERS

Hi Members 

We sometimes incorrectly refer to garnishee orders against our salary, but this is actually called an ‘emolument attachment order (EAO).’ An EAO is granted in term of section 65J of the Magistrate’s Court Act before it is sent to an employer. Alternatively a debtor can consent to the deductions by signing a section 58 consent document. The employer will then make deductions from an employee’s (the debtor’s) salary in order to pay off a debt. Sometimes EAO’s are simply not fair! 

Some important points to remember include:
• According to the law the EAO must be obtained in courts close to where the employee/debtor works (as it is then easier to oppose or rescind/ make away with the EAO);
• Employers are asked to first check with the employee whether they recognise a debt. It unfortunately often happens that a creditor will forge a debtor’s signature and send the consent document to the employer!
• Furthermore, no employer is entitled to deduct an EAO amount unless it is served by the sheriff of the court;
• The EAO deduction amount may not exceed 40% of the debtor’s salary.

If you suspect malpractice, we suggest that you immediately send your matter and your membership number to LIPCO for investigation. If you are not a LIPCO member, you may also refer this complaint to the National Credit Regulator for investigation at complaints@ncr.org.za. 

Wishing you a fantastic day, 

LIPCO
www.lipco.co.za