MEDIATION ENDORSED BY THE SUPREME COURT OF APPEAL
The Supreme Court of Appeal of South Africa delivered a judgment on 19 November 2010 in the case of S v J. The case concerned the best interests of a four-year-old girl whose mother had died two months after her birth. The issues in dispute were, inter alia, those pertaining to parental responsibilities and rights under the Children’s Act, unmarried fathers’ responsibilities and rights and grandparents’ responsibilities and rights and whether the child’s father or her maternal grandparents should be afforded parental responsibilities and rights in respect of her.
In a unanimous decision delivered by Supreme Court of Appeal Judge Lewis, it was ordered, inter alia, that the child’s father is the holder of full parental responsibilities and rights in terms of section 18 of the Children’s Act, and that the child should reside permanently with him. The maternal grandparents were afforded contact to the child to be arranged between the parties. It was further ordered that, in the event that the parties experienced difficulty in arranging contact, they must first attempt to resolve this through a mediator, rather than through court proceedings.
Judge Lewis recorded in her judgment that the litigation had not been in any of the parties’ interests. She stated… “and had all concerned attempted to talk about her genuine best interests, they would not have spent nearly five years embroiled in a dispute about her [the child’s] residence. This was not only at great emotional cost to all, but also at great financial cost which none of them could really afford. Fortunately, C’s [the child’s] interests have been served by Deysel who has acted pro bono. I endorse the views expressed by Brassey AJ in MB v NB that mediation in family matters is a useful way of avoiding protracted and expensive legal battles, and that litigation should not necessarily be a first resort. Legal practitioners should heed section 6(4) of the Children’s Act which provides that in matters concerning children an approach ‘conducive to conciliation and problem solving should be followed and a confrontational approach should be avoided’.”
This decision has significant ramifications for the role of mediation in our law and the duty on both the parties to the legal dispute and their legal representatives to use their best endeavours to resolve these disputes in a conciliatory manner.
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