September 2014 - Ivan Zartz Attorneys

16 Sep

Using Liquidation For Debt Collection Over R80 000

Debt collection over R80 000 needs special focus and instead of going the usual “Summons” route which many advisors suggest, Ivan Zartz Attorneys take a different view. It’s sometimes been called “Ivan the Terrible’s” way of dealing with significant debt, due to successes in this area and is only suitable when dealing with amounts due by a company or close corporation.

There are naturally certain things which need to be in order, so that the procedure can be adopted successfully and these requirements should be adhered to before the matter is handed over.

The paperwork is in order, i.e. proper proof of delivery, etc.
All genuine queries relating to the account have been resolved – there must be no room for the debtor to manoeuvre out of paying the debt.
Detailed notes of conversations with the credit department of the debtor /person responsible for finance as to why payment is not being made. See more about this later.
There is agreement by the creditor concerned that the settlement of the debt is more important than retaining the customer.

To revert to point 3 above, a company or close corporation may be liquidated if it can be shown that it is unable to pay its debts and some detail is needed here.

Inability to pay debts

A company or close corporation is deemed unable to pay its debts if no response is received following the process outlined below:

A letter of demand has been sent to the registered office of the company or close corporation demanding payment of the debt;
This letter has been served by the sheriff and more than 21 days have lapsed from the date when the letter was sent.

A company is also deemed unable to pay its debts if there is a written or oral admission by a representative of the finance credit department of the debtor that the company is unable to pay because it has cash flow problems.

It is absolutely imperative to set up a company/close corporation for a liquidation, if one obtains an admissions such as:

Case One

“we cannot pay our debts because we are awaiting a payment of a large sum of money from Company AA” or
“we cannot pay our debt to you because nobody is paying us” or
“we cannot pay our debt to you because business is bad and our directors are trying to obtain finance from a bank or a third party”.

These are tell-tale signs of an inability to pay.

From a practical point of view, the credit controller, or other relevant person, should note these responses and confirm in them writing to the debtor customer, if these remarks were made over the phone regarding debt collection issues. Another example of this could be:

Case Two

“I confirm that I telephoned you on [date], demanding payment of the sum of RXX XXX. During the course of the discussion, you advised me that you could not pay the debt, as you were owed substantial amounts of money by your customers who were just not paying. I confirm further that there has never been a dispute relating to any of the transactions between our companies, but rather that you are short of funds”.

Both the case examples above are the beginnings of successful liquidation applications. Bear in mind that one cannot liquidate a company or a close corporation if there is a genuine dispute about the amount owed. So, for instance, if (and as often happens) there is a dispute about short delivery or credit notes not having been passed, or other substantial defences, then one cannot liquidate. One then has to issue summons.

Assuming there are no disputes, and assuming you are armed with the debtor’s inability to pay, one then can liquidate.

What are the advantages of a liquidation?

Cost Effective

If one can agree a fee with one’s client, so that the attorney does not have to render countless accounts and the client does not know what the costs ultimately would be, this can be cost effective to all parties. Invariably, one can collect the costs from the debtor, or most of the costs, because the debtor is too terrified not to pay under the sword of threatened liquidation.

Timing – the “First-Come, First-Served” principle

In today’s recessionary climate, it is “first-come, first-served”. So those companies who go on and on phoning without doing anything proactive from a legal point of view, are often those who will end up completing long-winded claim forms when the company has been placed in liquidation and a meagre dividend of one cent in the Rand is received years later!

It is not possible to be prescriptive about when the creditor needs to hand over a debt, but there have been many instances where, because that company is scared of spending company’s money on legal fees, debts are handed over too late and the result is the “one cent in the rand” return scenario.

The Shock-Effect of a Liquidation Application

As mentioned earlier, one has to balance the option of not doing business with a customer again (because YOU are now broke), versus “insulting” the customer by serving a liquidation application.

From experience, Ivan Zartz Attorneys have found that, in the main, companies served with liquidation applications find the money to pay (!) as it is costly to oppose the application and file affidavits when, in most cases, there is no defence.

In a liquidation application, the technical defences a debtor can resort to, when one faced with summons being issued against them, are minimised so that one normally gets paid, as opposed to waiting years for payment. The prospect of the business being closed down, which is the effect of a liquidation order, outweighs all other considerations.

The Re-structuring of Securities

One final advantage of a liquidation is that sureties which are out of date, (i.e. where there are new directors), can be re-signed, or, in the case where there are no sureties, these can be obtained in the event that the company/close corporation wishes to make payment of the debt in instalments.

Ivan honestly believes that in today’s times, careful consideration should be given to the liquidation process to collect debts.

15 Sep

Child Participation

Respect for the opinion of children is critical in promoting children’s rights and protecting children more effectively. This is known more commonly as ‘child participation’.
Allowing children to actively contribute in essential decisions affecting them personally is of the utmost importance, instead of allowing them to merely remain as passive recipients of adult care and protection.

Children’s interests and adults interests should not be seen to intersect and therefore there is a need for children’s views to be voiced separately. Children’s views are sometimes needed in bitterly contested legal cases involving access and primary residence.

The Constitution of the Republic of South Africa guarantees that children have a right to be heard through a legal representative. Furthermore, the right is extended in terms of Section 28 (1) (h) whereby every person has a right to legal representation, which encompasses the right of children to have legal representation in civil matters. Section 35 of the Constitution further gives children the right to representation in criminal cases.

The right to participation and the recognition of children’s autonomy is also recognised in terms of the Children’s Act. The underlying principle can be found in Section 55 of such Act.

In terms of Section 10 of the Children’s Act, “Every child that is of such age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.”

However, it appears that neither Section 10 nor the above-mentioned international articles deal with when exactly a child will have capacity to express his/her views.

Useful guidelines in assessing the capacity to participate of a child

There is no clear-cut criteria such as a specific age or stage of development mentioned as a guideline, leaving all views and statutes open to interpretation, and open to the wide discretion of the court. Each formulation of this right requires a factual assessment of the specific child’s capacity by reference to his age, maturity and stage of development.

The above-mentioned assessment method is reinforced by the Committee on the Rights of the Child. They state that a child’s right to participate should not be constricted to fixed attributes. Their reasoning is that no two children are alike and they may gain maturity at different ages and stages of their lives. The main criteria to assess a child should be (i) their ability to understand and assess the implications of the matter at hand and (ii) the child’s capacity to express their views in a reasonable and independent manner.

In terms of Article 12 of the United Nations Convention on the Rights of the Child (“the Convention”) the court is required to afford a child who is capable of forming a view on a matter affecting him or her, the right to express those views.

The various ways children may choose to communicate (i.e. in a playful manner, body language or verbally), should be borne in mind by the decision maker, therefore it would not be suitable merely to assess a child’s ability to participate with regard to whether they are able to give evidence in court. Children should be approached and assessed with the utmost sensitivity bearing in mind their wishes and always putting the best interests of the child before all else. It needs to be remembered that judges are not trained child psychologists and may therefore be ill-equipped to establish what the wishes of the child truly are. In order to solve this problem I would suggest that in every matter concerning a child wanting to express their views in court, a trained expert in child psychology should be present in court to assist the judge to ascertain the true wishes of the child.

The case of F v F is a perfect illustration of the abovementioned point. It is stated at paragraph 54 thereof-

“If she found interaction with professionals daunting, it is then only logical to expect an encounter with five strange judges, ill-equipped to deal with the situation, to be thoroughly intimidating. Such an exercise would clearly not bear much, if any, fruit. It seems to me that, if either of the parties considered that there was a need to submit additional evidence in this regard, the proper route to follow would have been to have had the child interviewed by appropriate professionals, as was done previously, and to seek to place that evidence before the court.”

Are the child’s wishes always in their best interests?

From a practical point of view children are represented by a lawyer in court. These people are normally appointed by the court and they are experts in the field of what is in the best interest of the child, and they too will do a report to court after they interview the parties and the child. One must keep in mind the difficult position the Constitution and the Children’s Act may bestow on the legal representative acting on behalf of the child as they would have to decide whether to act in the best interests of the child, as stated in the Children’s Act, or whether to give precedence to their client’s wishes and thereby give precedence to the relevant Constitutional principles.

In Soller No v G and another, the court clarified that a legal representative of the child must always act in terms of Section 28 of the Constitution and “use his or her legal skills to represent the interest of the child, acting as their voice.”

The case further illustrates that the court has to assess matters in which children’s opinions are expressed very carefully.

The matter dealt with an adolescent child who approached the court for a variation of a custody order. The court assigned a legal representative in terms of Section 28(1)(h) stressing that “a child in civil proceedings may, where substantial injustice would otherwise result, be given a voice.” The Judge obtained a report from the family advocate to assist her in deciding whether custody should be awarded to the father of the child. Evidence showed that the father had instructed the child to be obstructive making the child feel as though he had to favour a certain parent. The psychologists were of the opinion that the child had made his decision due to duress or undue influence. It was held that the father was found to be a manipulative obsessive man and that it would not be in the best interest of the child to award him with sole custody. Accordingly, the court went against the wishes of the child.

Additionally, there is a universal principle which is found in most of the international instruments or conventions dealing with the rights of a child which states that the best interest principle supersedes any wishes or opinions the child may have. In considering what is in the best interests of the child, a convenient point of departure is the Constitution. Section 28(2) of the Constitution provides that “a child’s best interests are of paramount importance in every matter concerning the child”. This is a universal principle which is found in most of the international instruments or conventions dealing with the rights of a child.

The African Charter on the Rights and Welfare of the Child (“the Charter”), Article 4: Bests Interests of the Child, in subsection (1), further provides:

“In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.”

Leading Cases in the Matter of Participation

Ford v Ford [2006] 1 All SA 571 (SCA)

This case dealt with a mother who applied to remove the child born of the marriage from South Africa in order to relocate with her to the United Kingdom. The father had refused to consent to the child’s removal.

In order to come to a decision the court emphasised that the test in matters of this nature is ‘the best interests of the child’. The court had to evaluate a number of different factors including the child’s wishes where she is adequately mature to articulate her wishes.

Thanks to the evaluation of the child by child psychologists it was found that the child’s interests would be best served by remaining in South Africa and that the move would be prejudicial to her emotional and psychological well-being.

Rosen v Havenga and another [2006] 4 All SA 199 (C)

This case the dealt with a variation of a Guardianship and Custody Order, similar to the Soller case that was previously discussed. A mother applied to have sole custody. The court held that, in the circumstances, it was in the best interest of the child that an advocate be joined as the boy’s legal representative and that the father’s access and the question of sole guardianship and custody be suspended, pending the father undergoing psychological assessment and evaluation. The best interests of the child were yet again paramount o the court’s decision.

Conclusion

The views of children should not be undermined. Adults should take more cognisance of the views of children which are often communicated but fall on deaf ears. Participation by children creates better results for the child, and more importantly, promotes their fundamental human rights and best interests.
It is evident from the above discussion that the discretion to allow children to participate in matters and to promote their true wishes lies with the courts, which assess the situation together with trained child psychologists. If this is done properly children’s rights to participate will be effectively implemented. The court however is required to be very weary as to promote the best interests of the child when making a decision.
In my experience when children are drawn into these battles between divorced and/ or estranged parents it says a great deal about the obsessiveness of the parties. Normally, both parents use the child as a punching bag to vent their frustration arising from the consequences that follow the breakup of a relationship, i.e. to rid themselves of their inadequacies, anxieties and disappointments. In the leading cases dealing with children in bitter divorces, i.e. asking children to express their views in court, often leads them to be subjected to a battery of questions from psychologists. The children in the main are very scarred by the legal and psychological process they have to undergo in these cases and they themselves will probably need therapy for the rest of their lives.
The parents are never satisfied by one court’s decision and drag the children from one Court to another until their financial resources are exhausted. The wishes of children should be respected, but courts should be sensitive in using children to give evidence in contact cases.

There is no doubt, and this may sound repetitive, that it is the children who are the casualties of the war between parents.

Submitted by Ivan Zartz

11 Sep

Applying for Surrogacy – The Role of the High Court

The contents of this article refer to the case Parte WH and Others (2011) (6) SA 514 (GNP)

The agreement between a surrogate mother and the parents who are requesting this “service” (they are also called the “commissioning parents”) must be confirmed by the High Court, as it is a contract of a special kind, even “unique” if you think about the subject matter. When the surrogacy agreement is concluded, it should be remembered that the consequences which may follow could have far-reaching, and sometimes unintended, consequences.

What is often at stake is not only the physical well-being of the surrogate mother and the child to be born, but also the psychological consequences which may follow when the child is born and is to be handed over by the surrogate mother to the commissioning parents.

The High Court has a vital role to play in the confirmation of the agreement. On the one hand, it is directed to advance the spirit and the objectives of the Children’s Act, without creating or placing additional obstacles in the path of those applying to validate the agreement. On the other hand, however, the Court is the “upper guardian” of all minor children, so it cannot simply be a rubber stamp validating the private arrangements between contracting parties.

The Court’s role, therefore, must ensure that both the formal and the substantive (or practical) requirements of the Act are complied with. Invariably, applications of the kind contemplated by the Act are brought on an ex parte* basis and so the Court is invariably dependent upon the information placed before it by the Applicants. The utmost good faith is therefore expected and required of both the surrogate mother and the commissioning parents.

In satisfying itself that the absolute requirements of the Act have been met, the Court must be given sufficient information to support any of the conclusions that the applicants contend for. For example, where an applicant seeks to draw certain conclusions with regard to financial or emotional matters, or even general suitability as a parent, there should be facts to support such conclusions which a Court can interrogate. What this means, ultimately, is that the Court must be satisfied that the conclusions arrived at, are supported by facts. Accordingly vague and generic allegations in this regard that fall short of supporting a conclusion, may well render an application defective.

It would also follow, where such an application is brought on the basis of urgency, the proper grounds for urgency should be clearly set out in the papers as contemplated in Rule 6 (12) (b) of the Uniform Rules of Court.

When the High Court hears a surrogacy application and performs its judicial discretion, it may request any additional information from the parties (or any other institution), to assist it in the determination of the application.

The affidavit accompanying the application should contain the following:

All factors as set out in the Act, together with documentary proof where applicable.
Whether there have been any previous applications for surrogacy; the division in which the application was brought, whether such an application was granted and/or refused. If it was refused, the reasons for the refusal should be set out.
A report by a clinical psychologist in respect of the commissioning parents and a separate report in respect of the surrogate and her partner.
A medical report regarding the surrogate mother.
Details and proof of payment of any compensation for services rendered, either to the surrogate herself or to the intermediary, the donor, the clinic or any third party involved in the process.
All agreements between the surrogate and any intermediary, or any other person who is involved in the process.
Full particulars, if any agency was involved, any payment to such agency as well as an affidavit by that agency.
Whether any of the commissioning parents have been charged with, or convicted of a violent crime or crime of a sexual nature.

In respect of the enrolment or registration of the matter with the Court, the guidelines noted below should be followed, in order to protect the identities of the parties:

Any party who seeks to bring an application will follow normal procedures for the matter to be issued by the Registrar.
The court file must thereafter be brought to the office of the Deputy Judge President, together with a letter explaining the facts and that the application is brought in terms of section 295 of Act 38 of 2005 and requesting a date for hearing. In the event that any urgency exists in the hearing of the matter, that must be set out in the letter as well.
The Deputy Judge President will then give further directions as to how this matter shall be heard in due course, including the allocation of the judge for the hearing the matter.
Any consideration in respect of holding the hearing “in camera” (no member of the public can be present), must be addressed to the judge who is allocated to hear the matter, once the parties are notified of the relevant date of the hearing.

* ex parte is a Latin term meaning “from one party”, indicating that one of the parties in respect of the proceedings is absent.

11 Sep

Legal and Constitutional Issues arising from Surrogacy Applications

The contents of this article refer to the case Parte WH and Others (2011) (6) SA 514 (GNP)

Certain constitutional and legal issues invariably arise out of surrogacy applications and we deal with some of them below.

SURROGACY AND SAME SEX RELATIONSHIPS

As South African Law recognises heterosexual as well as same sex civil marriages and in the light of the fact that no discrimination on grounds of sexual orientation is allowed. Same sex couples must be treated in exactly the same manner as any heterosexual couple and any deviation from that will be unconstitutional. This has already been confirmed in numerous cases.

In our view, care should be taken that different tests are not applied to same sex couples which could be discriminatory. For example, in some of the cases, same sex couples were required to show that there will be so-called “maternal influences” which the child would be subjected too. The mothering of the child is a function that very often does not have anything to do with the gender of a parent. In any event many children grow up without a father or a mother and the Court should safeguard that it does not try to create a utopia for children born from surrogacy which is far removed from the social reality of society.

If one considers the provisions of Section 292(1) (c) then it is evident that the Legislature has contemplated that a single person may also be a commissioning parent. This appears to be in line with the prohibition of non-discrimination located in Section 9 of the Constitution.

THE BEST INTERESTS OF THE CHILD

In terms of section 28(2) of the Constitution a child’s best interests are of paramount importance in every matter concerning the child. This approach is echoed in section 7 of the Act.

Prior to the enactment of the Act the position with regard to the acquisition of parental responsibilities, in relation to the child by the commissioning parents was that the mother who gave birth to the child and her husband, if married were regarded as the parents of the child. Therefore the commissioning parents could only become the legal parents if they followed adoption procedures. The result of this was that where the surrogate mother changed her mind and did not wish to consent to the adoption of the baby she could do so irrespective of the genetic origin of the child. This issue was clearly a concern as it could impact directly on the best interests of the child as uncertainty regarding the parents could impact negatively on the child.

In terms of section 297(b) and (c) of the Act the surrogate mother has to hand the child over as soon as is reasonably possible after the birth and neither she or her partner or relatives have any right of parenthood or care.

The best interests of the child are furthermore addressed, in that the agreement may not be terminated after the artificial fertilization has taken place. However, a surrogate mother who is also a genetic parent of the child may prior the lapse of the 60 days after the birth of the child terminate the agreement.

Section 298(2) of the Act dictates that the Court must terminate the confirmation of the agreement upon finding, after notice to the parties and a hearing, that the mother has voluntarily terminated the agreement and that she understands the effect of the termination, and a Court may issue any other appropriate order if it is in the best interests of the child. In the light of the fact that the Court can issue “an appropriate order” the Court will be in a position to ensure that the best interests of the child is protected on termination of the agreement.

The best interest principle has not been given an exhaustive content, but the standard should be flexible as individual circumstances will determine the best interests of the child.

A Court considers the question of the best interests of the child care should be taken that the rights of the commissioning parents in terms of the Bill of Rights and the Promotion of Equality and Prevention of Unfair Discrimination Act, Act No. 4 of 2000 are not violated by unnecessary invasion of the privacy of commissioning parents or by setting the bar too high for parents whose only option is to have a child by way of surrogacy. This will entail a value judgment by the Court taking into consideration the circumstances of the particular case.

THE SURROGATE MOTHER AND THE RISK OF COMMERCIAL SURROGACY

While agencies that introduce potential commissioning parents to potential surrogate mothers generally play an important facilitative role, there are at the same time concerns that the involvement of agencies in the introduction of surrogate mothers can also easily lead to abuse. One would be naïve not to see how it is possible to develop to a point where “a womb for hire” could become de facto part of surrogacy practise. From an overview of international practise it becomes clear that, particularly in countries such as ours with deep socio-economic disparities and the prevalence of poverty, that the possibility of abuse of underprivileged women is a real and ever present danger. Ideally the involvement of agencies should be the subject of regulation and oversight in order to avoid abuse which ordinarily is very difficult to detect from the face of a contract of surrogacy. Commercial surrogacy can quite easily be disguised and payments in contravention of the law can just as easily be included under the guise of legal and legitimate payments.

Any payment to any person other than those set out in section 301 of the Act is prohibited. This would include any facilitation fee to any person who introduced the surrogate mother to the commissioning parents or any compensation of any nature other than those that the Act makes provision for and which can only include the expenses of the surrogate mother as set out in the Act, legal and medical expenses. The affidavit should state that no such fee was paid to any person.

If any agency is involved, full particulars regarding that agency should be revealed. An affidavit by the agency should also be filed containing the following:

the business of the agency
whether any form of payment is paid to or by the agency in regard of any aspect of the surrogacy
what exactly the agency’s involvement was regarding the
1. introduction of the surrogate mother,
2. how the information regarding the surrogate mother was obtained by the agency, and
whether the surrogate mother received any compensation at all from the agency or the commissioning parents.

Full particulars should be set out in the founding affidavit on how the commissioning parents came to know the surrogate mother and why she is willing to act as a surrogate to them. The surrogate mother’s background as well as her financial position should be investigated and set out in the affidavit. Furthermore a comprehensive report by psychologist is essential to assess the suitability of the surrogate mother. This should deal in particular with her background, psychological profile and the effect that the surrogacy and the giving up of the baby will have on her. Full medical reports should also be obtained regarding her physical condition to indicate whether surrogacy pose any dangers for her and/or the child. In our view the medical report should deal with the HIV status of the mother, as well as any disease that could be transferred from her to the child in order to protect the child and to allow the Court to exercise its discretion properly in confirming the agreement.

In our view, the application should also state where the gametes will come from, without revealing the identity of the donor.

A SUITABLE PARENT

The Act prescribes in section 295(b) (ii) that the commissioning parents should in all respect be suitable parents to accept parenthood , which raises the critical question as to who would constitute such ‘suitable persons” and what would their attributes be . In our view the individual idiosyncrasies of judicial officers should not determine the matter nor should the dominant prevailing view (whatever it may be) in society be necessarily decisive of the matter. One person’s idea of a suitable parent may vary significantly from that of the next person. The bewildering diversity that is South Africa will mean that cultural, social, religious backgrounds as well as issues such as gender may well be just some of the factors which may form views on what a suitable parent may be. Therefore Courts should consciously guard that in the exercise of their discretion personal perceptions should not operate to influence any decision on the suitability of a person to either accept parenthood or to act as a surrogate mother. On the other hand a Court should have regard to the personal and character details of a commissioning parent and in this regard details of previous criminal convictions, particularly those relating to violent crimes or crimes of a sexual nature should be disclosed and the circumstances surrounding them should be fully set out.

It would be timely to remember that for most people there are no restrictions or prohibitions on their ability to procreate. We should accordingly guard against setting unreasonably high standards that are not justifiable for people who choose surrogacy as an option for having a child. To do so will contravene the spirit of the principle of equality enshrined in the Constitution and the Equality Act. When a Court needs to decide on the suitability of a parent in our view an objective test should be applied which would include an enquiry into the ability of the parents to care for the child both emotionally and financially and to provide an environment for the harmonious growth and development of the child, bearing in mind the constitutional principles already referred to.

11 Sep

An Overview of the Law relating to Surrogacy

This overview of the law as it relates to surrogacy refers to the case Parte WH and others 2011 (6) SA 514 (GNP).

Surrogacy has very far-reaching implications when it comes to the legal side of such an arrangement and it has been dealt with, in very definite terms, in the Children’s Act which was recently amended. It is important for anyone considering surrogacy, to be aware of the requirements and to understand that the Supreme Court (or High Court) has to approve all agreements. This means that interested parties should consult with attorneys to ensure that proper procedures are followed and that the agreements are validated before any other processes begin.

The rights of individuals to bear and raise children is broadly recognised and supported by the State in South Africa through various measures, including the provision of financial assistance, social and other support services. It encompasses the right to:

have one’s own child with whom the parents share a genetic link,
adopt a child under certain circumstances, and more recently
in recognition of the physical and medical difficulties people may experience in seeking to have a child of their own , the right to have a child through a surrogacy arrangement.

The Act provides, in broad terms, for the legal requirements upon entering such agreements, as well as requiring confirmation from the High Court which renders such agreements valid. The Act followed after considerable thought was given to the legal ramifications of the acknowledgment of surrogacy within our legal framework by the ad hoc committee on surrogacy motherhood.

Given the centrality of the concept of ‘ the family’ in matters involving the best interests of the child, the very understanding of what constitutes a family and the roles traditionally associated with the component members of the family, has been the subject of considerable attention by our Courts over the past 17 years. The South African Constitution, founded as it is on the principle of equality and non-discrimination, has resulted in the substantial growth of a body of law which seeks to ensure the full enjoyment by everyone of all the rights in the Bill of Rights.

In this context, amongst others, the rights of gays and lesbians to form personal relationships of their choice and to marry and to participate in family life has been unconditionally recognised as being consistent with the principles of equality and dignity enshrined in the Constitution.

Consistent with this theme of the recognition of the rapidly-changing nature of how a family is made up and defined, the place of gender in the determination of the “quality of the parental role” also enjoyed the attention of the Court in the case of Van der Linde, where the Court concluded that :-

“… for decades it has been accepted that the quality of a parental role is determined by gender. It has been accepted that mothering was a component of a woman’s being only. At the present juncture it is to be doubted whether that acceptance can, by itself, serve as a universally prevailing axiom. These days mothering is also part of a man’s being. The concept of mothering is indicative of a function rather than a “persona” and this function is not necessarily situated in the biological mother. It includes the sensitive attachment which flows from the attention devoted from day-to-day to the child’s needs of love, physical care, nutrition, comfort, peace, security, encouragement and support. (…) Today the man has the freedom to reveal and live out the mothering feeling.”

Before the enactment of the Children’s Act, it would appear that the only way in which commissioning parents could become the legal parents of the child was by way of adoption in terms section 17(a) of the Child Care Act 74 of 1983 after the birth of the child.

Most people opt for surrogacy because they cannot conceive or carry a baby to full term, or on account of the risk that the mother’s life will be endangered by pregnancy. Gay and lesbian people in a relationship also have little choice, other than to enter into a surrogacy arrangement if they should wish to have a child genetically linked to either of them.

The Children’s Act now provides the legal framework for willing parties to facilitate surrogacy agreements, provided that the High Court has confirmed, as valid, all relevant surrogacy agreements.

Section 292 of the Act provides for the formal requirements of a valid surrogate motherhood agreement and in terms of Section 295, a court may not confirm the agreement unless certain requirements are met.

The Act is also specific about the content of the issues pertaining to the agreement, which include:

consent
genetic origin of the child
when artificial fertilisation could take place
termination of the agreement, and
the effect of termination of the agreement.

The Act also deals with the question of payment in respect of surrogacy and generally prohibits commercial surrogacy, while only permitting payments related to compensation for expenses, loss of earnings and bona fide professional, legal and medical services related to the confirmation of a surrogate motherhood agreement.

Despite the fact that the Children’s Act attempts to regulate and comprehensively structure the important aspects regarding surrogacy agreements , the legal implications of this relatively new development in our law could be rather complex and could also have far-reaching consequences for everyone involved.

On a consideration of the Children’s Act, International Laws and our Constitution, it became clear that a myriad of problems may arise surrounding the implementation of the unconditional requirements of the Act.