Centre for Child Law v TS and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J |
| Judgment Date | 29 June 2023 |
| Citation | 2023 JDR 2276 (CC) |
| Hearing Date | 22 November 2022 |
| Docket Number | CCT 157/22 |
| Court | Constitutional Court |
Tshiqi J (Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J; Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J and Rogers J concurring):
2023 JDR 2276 p4
Introduction
This is an application for confirmation of a declaration of constitutional invalidity of section 4 of the Mediation in Certain Divorce Matters Act [1] (Act), made by the High Court of South Africa, Gauteng Division, Johannesburg. Section 4 of the Act reads as follows:
The Family Advocate shall —
after the institution of a divorce action; or
after an application has been lodged for the variation, rescission or suspension of an order with regard to the custody or guardianship of, or access to, a child, made in terms of the Divorce Act, 1979 (Act No. 70 of 1979),
if so requested by any party to such proceedings or the court concerned, institute an enquiry to enable him to furnish the court at the trial of such action or the hearing of such application with a report and recommendations on any matter concerning the welfare of each minor or dependent child of the marriage concerned or regarding such matter as is referred to him by the court.
A Family Advocate may —
after the institution of a divorce action; or
after an application has been lodged for the variation, rescission or suspension of an order with regard to the custody or guardianship of, or access to, a child, made in terms of the Divorce Act, 1979,
if he deems it in the interest of any minor or dependent child of a marriage concerned, apply to the court concerned for an order authorizing him to institute an enquiry contemplated in sub-section (1).
Any Family Advocate may, if he deems it in the interest of any minor or dependent child of a marriage concerned, and shall, if so requested by a court, appear at the trial of any divorce action or the hearing of any application referred to in sub-sections (1)(b) and (2)(b) and may adduce any available evidence relevant to the action or application and cross-examine witnesses giving evidence thereat.”
2023 JDR 2276 p5
The applicant’s primary argument is that section 4 of the Act is unconstitutional in that it places an obstacle in the way of never-married parents and their children, to access the services of the Office of the Family Advocate in the same way that married parents going through a divorce and parents who were married to each other are able to access those services when there is a dispute regarding the care and contact of their children. This is so because divorced or divorcing parents need only fill in a form (Annexure B to the Regulations of the Act) [2] which in turn prompts the Office of the Family Advocate to initiate an enquiry in terms of section 4. Never-married parents on the other hand have to approach a court and bring a two-pronged application where, in Part A, they seek an order for the Office of the Family Advocate to investigate and file a report on the best interests of the child; and Part B being an application for whatever substantive relief they seek.
The applicant submits that this unjustifiably infringes on several of the constitutional rights of the excluded category of parents, namely sections 9 and 10, and also infringes the section 28(2) rights of the children concerned. Therefore, the constitutional attack on section 4 of the Act is premised on the ground that it is discriminatory to the extent that it provides a simple, streamlined process for married parents getting divorced, and for those who were married to each other, whilst it does not grant unmarried parents the same streamlined process, even if such parents are separating and do not have a parenting plan.
Parties
The applicant is the Centre for Child Law (CCL), a registered law clinic based in the Faculty of Law of the University of Pretoria. The law clinic works towards establishing systemic change and sustainable impact by developing the law to the benefit of children through advocacy, research and, where necessary, litigation. The
2023 JDR 2276 p6
first respondent is Ms T S, who is the mother of the minor children that are the subject of the application. She was never married to the father of the minor children and is no longer involved in the proceedings. The second respondent is Mr B N, and is the father of the minor children. The third respondent is the Minister of Justice and Correctional Services (Minister) who is cited in his official capacity and who initially filed a notice opposing costs only but later filed written submissions.
Factual background
Mrs T S, at the time still Ms J, and Mr B N met in 2007 when Mr B N was in Knysna during his holiday from France, where he was living and working as a professional rugby player. Their romantic relationship progressed, and in August of 2008, Mrs T S moved to the town of Oyonnax in France to live with Mr B N. In 2009 and 2011 she gave birth to their two children. From 2012, the couple started drifting apart, and in June 2014, the couple terminated their relationship and they agreed that Mrs T S and the children could return to South Africa. At this stage Mr B N was paying Mrs T S R20 000 maintenance per month which was reduced to R15 000 after she secured employment in Johannesburg.
In December 2015 Mr B N moved to George in the Western Cape at which point Mrs T S suggested to him that they have a parenting plan drawn up. Mr B N rejected the idea. During the Easter school holidays of 2016, the parties agreed that the children would visit Mr B N in George but upon realising that Mr B N had booked a one-way ticket for the children and refused to book a return ticket, Mrs T S refused to send the children to their father and proposed that Mr B N visit them in Johannesburg instead. On 13 March 2016 Mr B N launched an urgent application in the High Court for an order granting him contact with his children. The parties resolved the matter by concluding a parenting plan which was made an order of court on 15 March 2016. It dealt with guardianship, parental responsibilities, residential arrangements, access and visitation rights. The rights were to be exercised and enjoyed by both parties in South Africa and Mrs T S’s residence was to be the primary residence.
2023 JDR 2276 p7
In February 2020 Mrs T S got married and she and her husband debated the possibility of emigrating from South Africa with the children born of her relationship with Mr B N. Mr B N did not support the idea when it was conveyed to him and instead insisted that the children live with him in George in the event Mrs T S and her husband decided to leave South Africa. Unable to secure Mr B N’s consent to relocate with the children to Australia, Mrs T S approached the High Court for relief.
Litigation history
High court
Mrs T S’s application in the High Court was in two parts. In Part A she sought, inter alia, an order directing the Office of the Family Advocate to investigate the best interests of her minor children around their possible relocation with her to Canberra, Australia. Part B sought, inter alia, an order permitting Mrs T S to relocate to Australia permanently with the minor children, thereby varying the parenting plan which had been made an order of court in March 2016. The consequence of such an order would be that the minor children’s primary residence would still be with Mrs T S and she would still be the primary caregiver but their place of residency would be varied to be Australia instead of South Africa. Mr B N opposed both parts of the application and instituted a counter-application in which he sought an order, inter alia, that his home be the primary residence of the minor children.
Part A was set down on the opposed motion roll for 24 August 2021 and was allocated to Bezuidenhout AJ. The hearing was adjourned, inter alia because the Judge had concerns about the constitutionality of section 4. On 21 September 2021, the Court issued the following directions to the parties:
The Court has identified the following issues which require further argument and consideration:
It is trite that in almost all litigated matters involving children, the court will require a report from the Family Advocate in order to rule finally in the matter.
2023 JDR 2276 p8
Parties, as is the case in this instance, who have never been civilly married have a different path to follow entirely as they are informed that the Family Advocate [O]ffice will not become involved without a court order directing it to do so. This means that one or both parties must first approach the Court for such an order.
In stark contrast, if a party to any litigation who is married and in the process of divorcing or who was previously divorced and who wishes to litigate further, she can easily complete and sign an [A]nnexure “B” form to the [Act], and serve it on the opposition as well as on the office of the Family Advocate and an investigation will be conducted on the strength thereof.
It would therefore appear that an arbitrary distinction is made between the children of married, or formerly married and divorced parents, and parents of children whose parents have never been civilly married.
The category of unmarried parents naturally would include a large number of persons who elected not to be married for many and varied reasons, often economic, cultural, religious or social or simply subscribing to a different belief system.
The arbitrary distinction occasioned by policy and/or the Act appears to be inconsistent with the various provisions of the Constitution of the Republic of South Africa, 1996 and with the Children’s Act, 38 of 2005, including but not limited to the following:
2.6.1
The Children’s Act
Section 6(2)(c) and 6(2)(d) - all proceedings, actions or decisions in a matter concerning a child must -
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