Marima v Lesele (1065/2019) [2022] ZAGPJHC 380 (6 June 2022)

Marima v Lesele (1065/2019) [2022] ZAGPJHC 380 (6 June 2022)

The court held that mediation under section 21(3) of the Children's Act is ordinarily mandatory where there is a dispute regarding the fulfilment of section 21(1)(a) or (b). The requirements in section 21(1)(b) are cumulative, as indicated by the use of 'and' in the statutory text. The rigid approach of motion proceedings is inappropriate in matters concerning children; instead, the court must seek all relevant information and facilitate conciliation and mediation to serve the child's best interests. The matter was referred to the Family Advocate for mediation, with structured reporting and timelines, and postponed pending the outcome of mediation. All issues of costs were reserved.

Citation
[2022] ZAGPJHC 380
Parties
Applicant: Yekiso Marima; Respondent: Karabo Jacqueline Lesele
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 June 2022
Case Number
1065/2019
Procedural Posture
Urgent Application / Opposed Motion for Declaratory Relief; Interlocutory Referral to Mediation
Outcome
Application postponed pending mediation; dispute referred to Family Advocate; costs reserved.
Judges
VM Movshovich
Legal Topics
Parental Rights and Responsibilities, Children's Act, Mediation Requirement, Best Interests of Child, Motion Proceedings, Statutory Interpretation
Family and Children Civil Procedure Parental Rights and Responsibilities Children's Act Mediation Requirement Best Interests of Child Motion Proceedings Statutory Interpretation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 10 Party arguments 2
Sign in to unlock

Parties

Yekiso Marima

Applicant

Karabo Jacqueline Lesele

Respondent

Procedural Posture

Urgent Application / Opposed Motion for Declaratory Relief; Interlocutory Referral to Mediation

Legal Issues

  1. 1 Whether the applicant, an unmarried father, qualifies for full parental rights and responsibilities under sections 18(2) and (3) of the Children's Act, 2005.
  2. 2 Whether the requirements of section 21(1)(a) or (b) of the Children's Act are met by the applicant.
  3. 3 Whether mediation under section 21(3) of the Children's Act is a mandatory prerequisite before approaching the court.

Ratio Decidendi

The court held that mediation under section 21(3) of the Children's Act is ordinarily mandatory where there is a dispute regarding the fulfilment of section 21(1)(a) or (b). The requirements in section 21(1)(b) are cumulative, as indicated by the use of 'and' in the statutory text. The rigid approach of motion proceedings is inappropriate in matters concerning children; instead, the court must seek all relevant information and facilitate conciliation and mediation to serve the child's best interests. The matter was referred to the Family Advocate for mediation, with structured reporting and timelines, and postponed pending the outcome of mediation. All issues of costs were reserved.

Court Disposition

Application postponed pending mediation; dispute referred to Family Advocate; costs reserved.

Orders

  • The dispute regarding fulfilment of sections 21(1)(a) and (b) of the Children's Act is referred to the Family Advocate's office for mediation.
  • The mediation must be completed by no later than 29 July 2022.