South Africa Case Law

Centre for Child Law v T S and Others (CCT 157/22)

Centre for Child Law v T S and Others (CCT 157/22) [2023] ZACC 22; 2023 (9) BCLR 1027 (CC); 2023 (6) SA 1 (CC) (29 June 2023)

Court

Constitutional Court

Case number

CCT 157/22

Judges

Maya, Baqwa, Kollapen, Madlanga, Majiedt, Mathopo, Mbatha, Mhlantla, Rogers, Tshiqi

Section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 unfairly discriminates against unmarried parents and their children by denying them equal access to the services of the Office of the Family Advocate. The differentiation is based on marital status, a listed ground under section 9(3) of the Constitution, and is not rationally connected to any legitimate government purpose. The Act is outdated and does not reflect constitutional norms of equality, dignity, and the paramountcy of children's best interests. The discrimination is indirect but nonetheless constitutionally impermi…

Source excerpt

• Unfair Discrimination
• Parental Rights
• Best Interests Of Child
• Mediation In Divorce
• Marital Status Equality

A.M v S.W (7813/2022)

A.M v S.W (7813/2022) [2022] ZAWCHC 84 (16 May 2022)

Court

Western Cape High Court, Cape Town

Case number

7813/2022

Judge

Lekhuleni

The High Court found an urgent application about child care and contact was not urgent and removed it from the roll, while directing the Family Advocate to investigate.

• Care And Contact Assessment
• Best Interests Of Child
• Urgency In Application
• Appointment Of Expert
• Children S Act
• Mediation In Divorce

W.L v S.H and Another (2205/2016)

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

Court

Kwazulu-Natal High Court, Durban

Case number

2205/2016

Judge

Sishi

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…

Source excerpt

• Family Advocate Enquiry
• Legal Representation In Child Matters
• Best Interests Of Child
• Mediation In Divorce
• Court Regulation Of Procedure

Keshav v Kesnav (13336/04)

Keshav v Kesnav (13336/04) [2008] ZAGPHC 416; 2008 (5) SA 431 (W) (14 March 2008)

Court

High Courts - Gauteng

Case number

13336/04

Judge

Goldstein

The court granted a divorce after finding the child’s welfare arrangements were satisfactory, then requested a family advocate inquiry into access.

• Divorce Decree
• Custody And Access
• Minor Child Welfare
• Mediation In Divorce
• Divorce-decree
• Custody-and-access

Hardwick v Hardwick (AR 355/07)

Hardwick v Hardwick (AR 355/07) [2008] ZAKZHC 43 (14 February 2008)

Court

High Courts - Kwazulu Natal

Case number

AR 355/07

Judges

Theron, Kruger, Radebe

Appeal against a custody order was dismissed. The court upheld custody of the minor child with the respondent, applying the child’s best interests standard.

• Custody Of Minor Child
• Best Interests Of Child
• Parental Rights And Responsibilities
• Maintenance
• Mediation In Divorce
• Psychological Assessment