SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Lauren Christie, Clarks Attorneys
age, stage of development and level of maturity – and should be afforded an opportunity to participate in an appropriate manner and express their views and wishes. Children are given a voice but not a choice. Although it is not unheard of, children are not ordinarily called upon to give evidence at court insofar as pos ‑ sible. Legal practitioners and parents are encouraged to shield children from the acrimony of litigation, and their views and wishes are normally presented by way of a report from an appointed psychologist or social worker pursuant to an investigation, or alternatively by way of a child participation interview. In some instanc ‑ es, a child may have an appointed legal representative to represent them in proceedings or be interviewed by a curator ad litem, who will make submissions to court on the child’s behalf. 3.4 ADR in Child Law Matters Mechanisms outside the court process that exist to assist parties to resolve financial disputes include mediation, negotiation (facilitated by the legal repre ‑ sentatives) and the collaborative law process – which is still relatively unknown to the public and not gener ‑ ally practised. The Children’s Act expressly provides that parties should adopt a conciliatory and problem-solving approach in all matters relating to children, and avoid a confrontational approach wherever possible. Mediation is all but mandatory and, in terms of Uni ‑ form Rule 41A, litigants instituting an action or appli ‑ cation must, at the outset, confirm whether or not they agree to the referral of the dispute to mediation, and provide reasons for their position. Adverse costs orders may be considered in circumstances where one party refuses to engage in mediation prior to trial. In April 2025, the Gauteng High Court issued a Mediation Protocol making mediation mandatory for all civil trial matters. Under the Protocol, no new civil trial dates will be allocated without a mediation report confirming that mediation was attempted.
Arbitration in matrimonial matters is still not permis ‑ sible in terms of Section 2 of the Arbitration Act 49 of 1965, but a long-anticipated amendment to the Arbi ‑ tration Act is expected, so that divorce matters may be arbitrated by agreement between the parties. Any agreements that are reached by way of ADR should still be incorporated into the parties’ decree of divorce. Any further agreements relating to maintenance that are reached outside a divorce action should also be made orders of the appropriate court by way of an unopposed application to the relevant court (either the High Court or maintenance court), to ensure that the obligations imposed on both parties are enforceable. 3.5 Media Access and Transparency in Children Proceedings The media and press are able to report on child cases, but no information may be reported that would lead to the identification of a minor child. Divorce cases may not be reported on in a manner that in any way identifies the parties. Nonetheless, the media may report on the facts of a case. Children’s court matters are held in camera. All divorce judgments are now anonymised, using only the parties’ initials and therefore parties do not need to request the anonymisation of the proceedings.
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