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The question addressed herein is whether the regional court has jurisdiction to – post-divorce, on the substantive application of a party to the divorce – order the parties and minor child born of the marriage (and in respect of whom the other party has been awarded the primary care and residence in the divorce order), to submit themselves to be assessed by an expert with the view of obtaining evidence in support of the applicant’s quest to have the child’s primary care and residence be awarded to him.

This question was answered in the positive by the Western Cape Division of the High Court, in an appeal from the regional court in the matter of S v K (WCC) (unreported case number A162/2019, 25-10-2019) (Baartman J (Parker J concurring)).

The facts relevant to the issue decided on appeal, can be summarised as follows:

• S and K were married to each other and a minor child, M was born of the marriage. The marriage ran into trouble and they were divorced, the order incorporated a deed of settlement, which extensively dealt with the care and residence of S and K’s rights pertaining to M.
• M’s primary care and residence were awarded to the mother S, subject to, inter alia, K’s rights of access. Some years after the divorce K launched motion proceedings in the regional court for the variation of the decree of divorce and sought to be awarded M’s primary care and residence. The application was opposed and was later referred to trial.

After the matter was referred to trial, K launched a substantive application in the regional court seeking the following relief relevant to this article:

• Dr V be appointed to specifically conduct a forensic assessment in respect of the minor child M, as well as the parties, the paternal grandparents, the maternal grandfather and the minor child’s minor half-brother E.
• Dr V investigate the best interest of M with specific reference to the allegations of sexual abuse, primary residency and contact rights in respect of the non-resident parent.
• Dr V provide the court with a written report of his findings and recommendations.

S opposed the application on the basis of the regional court’s lack of jurisdiction to grant the relief, on the following grounds:

• The regional court was not the upper guardian of the minor M and is not vested with inherent jurisdiction as relied on by K.
• The regional court as a creature of statute was not enjoined to order the parties and the minor M to submit themselves to the assessment post-divorce as requested.
• The court had no jurisdiction to make orders against parties that were not before it.

The minors’ legal representatives, appointed in terms of the Children’s Act 38 of 2005 and read with the Constitution, agreed with K that the regional court was enjoined with jurisdiction to grant the relief sought in terms of the application. The regional court found in favour of K on the issue of the regional court’s jurisdiction.

The appeal to the Western Cape Division of the High Court in Cape Town was dismissed. The judgment did not discuss or deal with the regional court’s jurisdiction in respect of persons not joined in the proceedings and by necessary implication, found that the regional court was in fact enjoined with jurisdiction in respect of the non-parties relevant to the application before the regional court. In this regard the court clearly erred and the judgment in this regard does not deserve any further discussion.

In respect of the question whether the regional court is in principle enjoined with jurisdiction to order parties and minor children post-divorce to be assessed by an expert in an application as described above, the court found at para 7:

‘The application to vary the divorce order in respect of the care and contact of the minor child is authorised in terms of the Divorce Act [70 of 1979]. The regional court is a court for purposes of the variation application. It follows that the application for variation is properly before the regional court. The application to order a forensic investigation is an application ancillary to the variation application and therefore authorised in terms of section 8 of the Divorce Act’ and at para 9:

‘The regional court, unlike the children’s court, is a court for purposes of section 8 of the Divorce Act. As indicated above, the regional court may entertain the variation application and the application under discussion is ancillary thereto. It follows that the regional court has jurisdiction to entertain the application. Any court dealing with an application involving a minor has the obligation to ensure that the best interest of the minor is served. The merits of the application will determine whether any relief should be granted’.

Discussion

The regional court, being a creature of statute and being an entirely separate court than the High Court, is exercising wholly distinct jurisdiction and it is only afforded the powers provided for the Divorce Act 70 of 1979 and the Magistrates’ Courts Act 32 of 1944 and read with the Rules regulating the Conduct of the Proceedings of the Magistrates’ Courts (see MC v MJ (GJ) (unreported case number A3076/2016, 28-3-2017) (Modiba J (Carelse J concurring)) and SW v SW and Another 2015 (6) SA 300 (ECP) at para 22).

It has no inherent jurisdiction as does the High Court (and in particular as the upper guardian over every minor child (Narodien v Andrews 2002 (3) SA 500 (C) at 515G-I).

A magistrate’s court for a regional division has by virtue of the provisions of s 2(1) of the Divorce Act jurisdiction in a ‘divorce action’. ‘Divorce action’ has been defined in the Divorce Act to mean ‘… an action by which a decree of divorce or other relief in connection therewith is applied for, and includes –

(a) an application pendente lite for an interdict or for the interim custody of, or access to, a minor child of the marriage concerned or for the payment of maintenance; or

(b) an application for a contribution towards the costs of such action or to institute such action, or make such application, in forma pauperis, or for the substituted service of process in, or the edictal citation of a party to, such action or such application’ (my italics).

The word ‘action’ in the definition of ‘divorce action’ has, save where specific reference is made to an application, it is submitted, the narrower meaning of proceedings initiated by summons.

Section 29(1B)(a) and (b) of the Magistrates’ Courts Act 32 of 1944 read as follows:

‘(1B)(a) A court for a regional division, in respect of causes of action, shall, subject to section 28(1A),

have jurisdiction to hear and determine suits relating to the nullity of a marriage or a civil union and relating to divorce between persons and to decide upon any question arising therefrom, [ie, the questions arising from a suit relating to the divorce action] and to hear any matter and grant any order provided for in terms of the Recognition of Customary Marriages Act, 1998 (Act No 120 of 1998).

(b) A court for a regional division hearing a matter referred to in paragraph (a) shall have the same jurisdiction as any High Court in relation to such a matter’ (my italics).

The meaning of the word ‘suits’ in s 29(1B)(a) of the Magistrates’ Courts Act corresponds with the words ‘divorce action’ in s 2(1) of the Divorce Act.

Section 2 of the Divorce Act read with the definition of ‘divorce action’ provides that a court with jurisdiction to grant a decree of divorce in terms of s 2 also ‘has jurisdiction to make orders in respect of matters ancillary and preliminary to that divorce action’ (SW v SW and Another 2015 (6) SA 300 (ECP) at para 18; Green v Green 1987 (3) SA 131 (SE) at 134D)).

An order for the referral to assessment post the granting of a final decree of divorce is not a matter ancillary and preliminary to the ‘divorce action’ that had been resolved by means of a final decree of divorce.

On a proper interpretation of s 29(1B)(a) of the Magistrates’ Courts Act the Regional Court’s jurisdiction to ‘decide upon any question arising therefrom’ was meant, with specific reference to the use of the comma before the word ‘and’ in the phrase ‘and to hear any matter and grant any order provided for in terms of the Recognition of Customary Marriages Act, 1998 (Act No 120 of 1998)’, to refer to ‘questions’ that may arise during the divorce proceedings, and not to issues that may arise post-divorce in substantive proceedings, for example as in casu, where a variation of the divorce order pertaining to the primary care and residence of a minor child is being sought.

The relief pertaining to the assessment of the relevant persons as sought in terms of the application does not relate to a divorce suit or a question arising therefrom, but is in respect of a process provided for in s 8(1) of the Divorce Act, and hence does not fall within the ambit of s 29(1B)(a) or (b) of the Magistrates’ Courts Act.

The powers of the regional court to deal with issues related to a divorce matter post the order of divorce is regulated by s 8(1) of the Divorce Act, which provides as follows:

‘A maintenance order or an order in regard to the custody or guardianship of, or access to, a child, made in terms of this Act, may at any time be rescinded or varied or, in the case of a maintenance order or an order with regard to access to a child, be suspended by a court if the court finds that there is sufficient reason therefor’ (my italics).

The regional court’s jurisdiction in respect of actions for divorce (and any question arising therefrom) on the one hand and its jurisdiction in respect of the variation of divorce orders previously granted on the other, are derived from different statutory provisions: In respect of divorce action or divorce suits and questions arising therefrom, it is s 29(1B)(b) of the Magistrates’ Courts Act read with s 2(1) of the Divorce Act. In respect of the variation of existing maintenance and custody orders pursuant to an existing regional court divorce order, it is s 8(1) of the Divorce Act.

Neither the Divorce Act and the Magistrates’ Courts Act nor the Magistrates’ Courts Rules enjoin the regional court with the jurisdiction to order that the minor child who is the subject of litigation in terms of s 8(1) of the Divorce Act, the parties to the litigation or non-parties to the litigation, as envisaged in the relief sought in casu, shall subject themselves to an assessment with the view to amending an existing custody order (see also: Davy v Douglas and Another 1999 (1) SA 1043 (N)).

The Children’s Act also does not give the regional court the jurisdiction to order the assessment of a child, the parents, grandparents or siblings.

Conclusion

The regional court lacks jurisdiction to order an unwilling parent and the parties’ minor children post-divorce to subject themselves to be assessed for purposes of obtaining a variation of an existing order pertaining to the primary care and residence of such minor children, and I submit that the Western Cape High Court’s decision in S v K on appeal to the contrary cannot be supported.

Danie van der Merwe BIuris (UFS) LLB (Unisa) LLM (NWU) is an advocate at the South Cape Society of Advocates in George and was counsel in the above matter.

This article was first published in De Rebus in 2021 (Jan/Feb) DR 18.