November 2022 Newsletter

“Guardians of the Galaxy”

Guardianship of children is vital to the children’s and the parents’ lives. A parent or a person who wishes to apply for the sole guardianship of a child must understand what is expected of a guardian.?

?Legislation?

In terms of section 18(2)(b) section 18(3) of the Children’s Act, 38 of 2005 (hereinafter referred to as “the Act”), a guardian must:?

• administer and safeguard the child’s property and property interests;?
• assist or represent the child in administrative, contractual and other legal matters; or
• give or refuse any consent required by law in respect of the child, including consent to the child’s marriage, adoption, the child’s departure or removal from the Republic, consent to the child’s application for a passport, consent to the alienation or encumbrance of any immovable property of the child.

The natural guardianships are usually the parents; however, if they cannot carry out their duties, the court appoints a ‘legal guardian’ for the children. The High Court of South Africa is the upper guardian of all children in South Africa.?

Suppose a guardian is not satisfied with their duties as set out in the Act. In that case, the High Court of South Africa can be approached to intervene and has the power to terminate the guardianship and transfer care of the child to another person or parent. Therefore, this raises the discussion about when guardianship can be taken away from the other parent or, in certain circumstances, be awarded to a third party.?

?The following factors are taken into consideration:?

1. Whether the parent has shown any interest in building or maintaining a relationship with the minor child;?
2. The frequency of the parent and the minor child’s contact with one another;?
3. Will the parent that is going to obtain sole guardianship be able to provide for the minor child on his/her own;?
4. The best interest of the minor child needs to be considered;?
5. Whether the other parent complies with any of their parental rights and responsibilities in terms of contact, care or maintenance.?

When Can You Launch A Guardianship Application???

• If your ex-spouse does not contribute in any manner towards the upbringing of your child;?
• If you want to travel with your child outside the Republic;?
• If you need to apply for an unabridged birth certificate or passport of a child;?
• If the minor child perhaps needs to be adopted by a new spouse.?

If you have been the only parent making all the decisions of the minor child’s well-being without assistance from the other parent, however, in instances where the administration where both parents’ consent is necessary, the other party refuses assistance as a way of punishment or spite then you need to consider bringing a guardianship application to ensure that you can make day-to-day decisions pertaining to the minor child and to act in minor’s best interest.??

Conclusion?

A child’s legal guardian should be a fit and proper person, responsible and a trusted friend or family member. If required, a legal guardian may be appointed by way of an application to the High Court of South Africa. The appointment of such a legal guardian does not affect parental rights and responsibilities and would not make the legal guardian financially responsible for the children.?

Contact an attorney at SchoemanLaw for your legal needs by visiting our website at?www.schoemanlaw.co.za. ?

Recipes for success #1 - What Are Common Legal Challenges That Entrepreneurs Face?

In this video Nicolene Schoeman-Louw explains the top 3 legal challenges entrepreneurs face:

• Complaints are the first challenge.
• The second one is when someone doesn't pay.
• The third challenge is when you want to expand and you don't have the necessary

The Best Way For A Foreigner To Start A Business In South Africa

Introduction

Ever wondered if a foreign national can start a business in South Africa? Are you a foreign national and planning on starting a business in South Africa, but you are not sure if you can? This article will explain how a foreign national may start a business in South Africa in section 23 of the Companies Act 71 of 20081.

Is there more than one way to start a business??

There are two ways a foreigner may start a business in South Africa. Namely, the Business Visa and the Independent Financial Permit. Suppose a?foreign national would like to register their business. In that case, they require the following documents: a VFS appointment letter, a duly completed Department of Home Affairs letter 947 (application for permanent residence), your original Passport, a valid business visa for temporary “stay” at the time of application in respect of each applicant, if the application is made in the Republic, to name a few.

Most foreign nationals open a business in South Africa on a business visa. However, the Independent Financial permit is not as strict as the business visa application because it requires ongoing reporting. In addition, the independent financial permit allows a foreign national to reside in South Africa permanently.

Who can apply?

The business visa allows foreign nationals to invest in a business or an existing business that will work within the said business.

The Independent Financial skills permit is not restricted to a particular economic activity. There is no obligation on the foreign national to start a business or to invest in one. The Independent permit allows the foreign national to decide whether they want to start a business, join an existing business, work or even retire.

The process of registering your business

There is no flexibility offered on a business visa to a foreigner to shop around for other business. The business visa involves the Department of Home Affairs and the supporting documentation such as the company registration and the memorandum of incorporation. The compliance can therefore take 4 – 12 weeks.

The Independent Financial permit allows for a foreign national as many businesses as the holder requires. This is also for the foreign nationals to take up employment or to explore other opportunities while they register or join the business of their choice. This process does not involve third parties like the business visa and can be much quicker. However, submitting the documents to the department of home affairs can take up to 4 -12 weeks.

Is the Independent Financial Permit the better option?

The Independent financial persons permit has disadvantages in that the processing time and the high Department of Home Affairs fee of R120 000.00 for the application. The foreign national should also have a larger net wealth. However, if you do not have considerable net wealth, applying for a business visa would be better.

Conclusion?

Therefore, getting advice on the best route possible for a foreign national to start a business in South Africa is important. Contact an attorney at SchoemanLaw to help you better understand how a foreign national can start a business in South Africa as well as any other commercial needs.