SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Jessica Clark, Clarks Attorneys
3. Child Law 3.1 Choice of Jurisdiction
sion (SALRC) has published a discussion paper relating to the codification of different manners of ADR, such as mediation, attorney-assisted mediation, parental co-ordination/facilitation, collaborative dispute resolution and arbitration. However, the Arbitration Act 42 of 1965 does not permit arbitration in matrimonial matters or any matters that are incidental thereto (Section 2(a)). Notwithstanding this, arbitration has long been advocated for in matrimonial matters, and the SALRC has recommended draft legislation to the Department of Justice in respect of the arbi - tration of disputes relating to patrimonial claims and issues relating to minor children, subject to the judicial oversight of the High Courts. Mediation is encouraged and, in terms of Uni - form Rule 41A, litigants instituting an action or application 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 cir - cumstances where one party refuses to engage in mediation prior to trial. Any agreements that are reached by way of ADR should still be incorporated into the par - ties’ decree of divorce. Any further agreements reached outside of a divorce action relating to maintenance should also be made orders of the appropriate court by way of an unopposed application to the relevant court (either the High Court or the maintenance court), to ensure that the obligations imposed on both parties are enforceable.
Children’s courts have jurisdiction to adjudicate a matter when the court is in the area in which the child involved is ordinarily resident or, if more than one child is involved, the court of the area in which any of those children are ordinarily resident (Section 44 of the Children’s Act 38 of 2005). If the children’s court has geographical jurisdiction, it is able to adjudicate a wide scope of matters relating to children, which are set out in Section 45 of the Children’s Act and include: • the protection and well-being of a child; • the care of or contact with a child; • guardianship of a child; • the support of a child; • the temporary safety of a child; and • the adoption of a child, including an inter- country adoption. The High Courts similarly have jurisdiction over matters where the child involved is ordinarily resident within the geographical area of the High Court. The High Court and the children’s courts have concurrent jurisdiction over a number of issues, including guardianship of a child. The domicile or nationality of a child who is ordi - narily resident in South Africa has no impact on jurisdiction. 3.2 Living/Contact Arrangements and Child Maintenance Living/Contact Arrangements If parents are not able to agree on what care and contact arrangements will be in their child’s best interests, and have not been able to resolve this dispute by way of mediation, then an expert will need to be appointed to conduct an inves - tigation into the best interests of the child. This
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