CENTRE FOR CHILD LAW V T S AND OTHERS [2023] ZACC 22 – 29 June 2023
THE FACTS
The facts of the Centre for Child Law v T S and Others case were as follows: – Mrs T S (formerly Ms J) and Mr B N had a romantic relationship that began in 2007 when Mr B N was on holiday in Knysna, South Africa. Mr B N was living and working as a professional rugby player in France at the time. In August 2008, Mrs T S moved to Oyonnax, France, to live with Mr B N. In 2009 and 2011, Mrs T S gave birth to their two children. The couple’s relationship started to deteriorate in 2012, and in June 2014, they decided to end their relationship. They agreed that Mrs T S and the children could return to South Africa. At the time of the separation, Mr B N was paying Mrs T S R20,000 per month in maintenance, which was later reduced to R15,000 after she secured employment in Johannesburg.
In December 2015, Mr B N had moved to George in the Western Cape, at which point Mrs T S had suggested to him that they draw up a parenting plan. Mr B N had rejected the idea. During the Easter school holidays of 2016, the parties had agreed that the children would visit Mr B N in George, but upon realizing that Mr B N had booked a one-way ticket for the children and refused to book a return ticket, Mrs T S had 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 had launched an urgent application in the High Court for an order granting him contact with his children. The parties had 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.
In February 2020, Mrs T S had gotten married, and she and her husband had considered the possibility of emigrating from South Africa with the children from her relationship with Mr B N. When this idea was presented to him, Mr B N had not supported it and had instead insisted that the children live with him in George if Mrs T S and her husband decided to leave South Africa. Unable to obtain Mr B N’s consent to relocate with the children to Australia, Mrs T S had sought relief from the High Court.
Mrs T S’s application in the High Court had been divided into two parts. In Part A, she had sought, among other things, an order directing the Office of the Family Advocate to investigate the best interests of her minor children regarding their potential relocation with her to Canberra, Australia. Part B had sought, among other things, an order allowing Mrs T S to permanently relocate to Australia with the minor children, thereby altering the parenting plan that had been made an order of court in March 2016. The result of such an order would have been that the minor children’s primary residence would remain with Mrs T S, and she would continue to be the primary caregiver, but their place of residency would change from South Africa to Australia. Mr B N had opposed both parts of the application and filed a counter-application in which he had sought an order, among other things, that his home be the primary residence of the minor children.
THE HIGH COURT’S FINDING
The High Court had decided that the challenge raised against a certain provision of the law was valid and that the provision was not in the best interests of children and the public. The court had declared this provision to be inconsistent with the Constitution and therefore invalid.
Here’s what the court’s order meant in simpler terms:
- The court had declared that Section 4 of the Act was not in line with the Constitution and was therefore invalid.
- This declaration of invalidity had to be confirmed by the Constitutional Court.
- The declaration of invalidity was put on hold for 24 months from the date the Constitutional Court confirmed it. This gave Parliament time to fix the issues identified in the judgment.
- As a temporary measure until the Constitutional Court made a decision on the validity of the Act:
- The word ‘or’ was removed from certain parts of Section 4 and a new paragraph (c) was added to both sections 4(1) and 4(2). This new paragraph related to applications that affected or were likely to affect a parent’s responsibilities and rights, or applications made by a non-parent as outlined in the Children’s Act.
- The phrase ‘of a marriage concerned’ was removed from sections 4(1)(b) and 4(2)(b).
- All requests for inquiries were to be made to the Family Advocate by completing a specific form found in the Regulations to the Act.
WHAT WAS THE MAIN ISSUE ADDRESSED IN THE CONSTITUTIONAL COURT?
The main issue addressed in the case was the constitutionality of section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987. The Centre for Child Law argued that this provision unfairly discriminated against never-married parents and married parents who were not going through a divorce, as it excluded them from accessing the services of the Office of the Family Advocate in the same manner as divorced or divorcing married parents. The case examined whether this differentiation violated the rights to equality, human dignity, and the best interests of minor children as enshrined in the South African Constitution.
WHAT IS THE SIGNIFICANCE OF THIS DECISION FOR NEVER-MARRIED PARENTS AND MARRIED PARENTS WHO ARE NOT GOING THROUGH A DIVORCE?
The decision in this case is significant for never-married parents and married parents who are not going through a divorce because it ensures that they can now access the services of the Office of the Family Advocate in the same manner as divorced or divorcing married parents. Prior to this decision, section 4 of the Mediation in Certain Divorce Matters Act excluded never-married parents and married parents who were not going through a divorce from accessing these services, which was found to be unconstitutional. This decision ensures that all parents, regardless of their marital status or whether they are going through a divorce, have equal access to the services of the Office of the Family Advocate, which can assist in resolving disputes regarding the custody or guardianship of, or access to, a child.
WHAT DID THE CONSTITUTIONAL COURT JUDGEMENT SAY ABOUT SECTION 4 OF THE MEDIATION IN CERTAIN DIVORCE MATTERS ACT 24 OF 1987?
The judgment concluded that section 4 of the Mediation in Certain Divorce Matters Act is unconstitutional and unjustifiably limited the rights of affected parents and children. The court found that section 4 discriminated on the basis of a characteristic that is common to a specific group (divorcing married parents) and less common or non-existent in other groups (never-married parents and married parents who were not going through a divorce). This differentiation based on marital status was deemed to be unfair discrimination and a violation of sections 9(1) and 9(3) of the Bill of Rights. The court further determined that the limitation imposed by section 4 was not justifiable under section 36 of the Constitution. As a result, the court declared section 4 of the Act inconsistent with the Constitution and suspended the declaration of invalidity for a period of 24 months to allow Parliament to address the constitutional defects.
WHAT DID THE CONSTITUTIONAL COURT SAY ABOUT SECTION 28(2) WHICH REQUIRES THAT A CHILD’S BEST INTERESTS ARE PARAMOUNT?
The court referred to section 28(2) of the Constitution, which requires that a child’s best interests have paramount importance in every matter concerning the child. The court cited the Fitzpatrick case, which held that the reach of section 28(2) cannot be limited to the rights enumerated in section 28(1) and that section 28(2) must be interpreted to extend beyond those provisions. The court noted that the “best interests” standard had been applied in a number of different circumstances and appropriately had never been given exhaustive content in either South African law or in comparative international or foreign law. The court emphasised that the best interests of the child must be the primary consideration in all matters concerning the child, including disputes between parents, and that the child’s interests must be protected and promoted in a manner that is consistent with the child’s rights.
IN SUMMARY
The court found that section 4 limited sections 9(1) and 9(3) of the Bill of Rights and that the limitation was not justifiable under section 36 of the Constitution. The court further concluded that section 4 was an unjustifiable limitation of the rights of affected parents and children under sections 10 and 28 of the Bill of Rights. Therefore, the court declared section 4 of the Act inconsistent with the Constitution.
Summarised by Authored by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by Lawsplash, for more information on Family Law read more here.