W.L v S.H and Another (2205/2016) [2016] ZAKZDHC 52; [2017] 1 All SA 652 (KZD) (3 November 2016)

W.L v S.H and Another (2205/2016) [2016] ZAKZDHC 52; [2017] 1 All SA 652 (KZD) (3 November 2016)

The Court found that the procedures for Family Advocate enquiries are not prescribed by statute or regulation, and no binding policy exists regarding attorney attendance. The High Court, in the interests of justice and the best interests of the child, has the power to regulate such procedures. The presence of attorneys during Family Advocate interviews is not a constitutional right, as these enquiries are not judicial proceedings. Allowing legal representatives to attend would undermine the conciliatory and problem-solving approach mandated by the Children's Act and could adversely affect the assessment process. The conduct of the First Respondent and her attorneys was obstructive and not...

Citation
[2016] ZAKZDHC 52
Parties
Applicant: W L; Respondent: S H; Respondent: Shepstone & Wylie Attorneys
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
3 November 2016
Case Number
2205/2016
Procedural Posture
Urgent Application / Interlocutory Application Prior to Main Hearing
Outcome
Application granted. Relief sought in prayers 1 and 2 of the Notice of Motion is granted. Costs awarded jointly and severally against First and Second Respondents.
Judges
Sishi
Legal Topics
Family Advocate Enquiry, Legal Representation in Child Matters, Best Interests of Child, Mediation in Divorce, Court Regulation of Procedure
Family and Children Civil Procedure Family Advocate Enquiry Legal Representation in Child Matters Best Interests of Child Mediation in Divorce Court Regulation of Procedure

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Parties

W L

Applicant

S H

Respondent

Shepstone & Wylie Attorneys

Respondent

Procedural Posture

Urgent Application / Interlocutory Application Prior to Main Hearing

Legal Issues

  1. 1 Whether the parties' legal representatives may be present during interviews conducted by the Family Advocate.
  2. 2 Whether the High Court has the power to regulate the procedure of Family Advocate enquiries.
  3. 3 Whether the presence of attorneys at Family Advocate enquiries is in the best interests of the child.

Ratio Decidendi

The Court found that the procedures for Family Advocate enquiries are not prescribed by statute or regulation, and no binding policy exists regarding attorney attendance. The High Court, in the interests of justice and the best interests of the child, has the power to regulate such procedures. The presence of attorneys during Family Advocate interviews is not a constitutional right, as these enquiries are not judicial proceedings. Allowing legal representatives to attend would undermine the conciliatory and problem-solving approach mandated by the Children's Act and could adversely affect the assessment process. The conduct of the First Respondent and her attorneys was obstructive and not...

Court Disposition

Application granted. Relief sought in prayers 1 and 2 of the Notice of Motion is granted. Costs awarded jointly and severally against First and Second Respondents.

Orders

  • The First Respondent is ordered to attend and participate in the enquiry to be conducted by the office of the Family Advocate, Durban, on the date and at the time to be determined by it, on not less than 5 days written notice.
  • No person, including any representative of the Second Respondent or any person instructed by the Second Respondent, may be present during the enquiry to be conducted by the office of the Family Advocate, Durban, as provided for in paragraph 1.