Judicial discretion in unopposed divorce matters

February 1st, 2023
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Picture source: Gallo Images/Getty

This article discusses the way some presiding officers – in various divisions of the High Court and different magistrates’ courts – adjudicate unopposed divorce proceedings and unnecessarily remove matters from the rolls. These presiding officers overemphasise technicalities and compliance with rules and directives to remove matters from the roll even where orders can easily be granted through positive exercise of discretion. It is difficult to understand why some presiding officers rigidly approach non-compliance with court rules and directives where parties have settled their divorce disputes.

Parties are generally encouraged to amicably resolve their divorce disputes. Divorce practitioners also attempt to assist their clients to resolve their disputes through negotiations, to avoid prolonged adversarial litigations, which is costly, lengthy, and destructive to spouses’ relationships. Spouses may also try an amicable settlement of their disputes through mediation. While both spouses may wish to divorce, they may differ on how the care, contact, maintenance, guardianship, and marital property should be addressed. These and other marital issues may justify spouses engaging in negotiations or subjecting themselves to mediation. Mediation can be provided by the Family Advocate or any of the several private mediators (Magdelene De Jong ‘International trends in family mediation – are we still on track?’ (2008) 71 THRHR 454 at 468). In settlement negotiations and mediation, those guiding spouses aim to assist them to reach negotiated settlements of their disputes. In Ex parte: PJLG and Another; In re: PJLG and Another [2013] 4 All SA 41 (ECG) at para 1, the court held that ‘[t]he usual outcome of such a negotiated settlement is the conclusion of an agreement, for the terms of the settlement to be recorded in a written document, and for it to be made an order of the court. The record of this agreement or contract is commonly referred to as a settlement agreement, a deed of settlement or a consent paper’. In MB v NB 2010 (3) SA 220 (GSJ) at para 50, Brassey AJ noted that settlement negotiations in divorce proceedings between legal advisers are frequently fruitful.

Once parties have signed their settlement agreement and the court found nothing unquestionable with their agreement, it is unlikely that the court will reject such a settlement agreement. In practice, parties can resolve their disputes a few days before the day of trial or on the date of trial and submit the settlement agreement to the presiding officer during oral presentation. The process in the Gauteng Division of the High Court is a bit different and does not allow for this practical eventuality. The Judge President’s Consolidated Directive (Revised – 18 September 2020 Consolidated Directive) dated 11 June 2021 (the Consolidated Directives) at para 41 states that:

‘All matters that are enrolled on the trial roll and which become settled should be removed from the trial roll. These matters should be set down on the Settlement Roll and are subject to the provisions of Chapter 9 (paragraphs 52 to 64) of revised Directive 1 of 2021. The matters shall be dealt with in the identical fashion to the Judicial Case Management Meetings/Case Management Conferences under the conditions described above’.

This means that if a divorce matter placed on an opposed roll becomes settled a few days before or on the date of the trial, the matter must be removed from the roll to be enrolled on the unopposed roll. Paragraph 47 of the Consolidated Directives specifically states that family matters ‘… that are settled before the set down date, in terms of this directive, must:

47.1 be removed from the trial roll and set down for disposal in the Settlements Court’.

There is a dedicated court dealing with settled family disputes in the two divisions of Gauteng. It appears that every settled family matter, irrespective of when it was settled, must be heard by these courts. The challenge is that having regard to the number of matters dealt with by the two divisions in Gauteng, the matter will have to be finalised at a later date. This can be a month or more later from the original date of the opposed roll. This matter will now have to queue behind other unopposed matters, which have been submitted to the relevant Registrar. It is not entirely clear what disqualifies the judge dealing with the opposed roll from finalising the matter that has become settled and that matter to be referred to the settlement court. With respect, apart from the administrative burden associated with applying for a hearing date, this is one of the ways of increasing the workload and retaining matters unnecessarily on the roll. When papers are in order, unopposed divorce applications are quick and judges dealing with opposed divorce rolls can easily dispose of ‘opposed’ matters that have recently become settled. There is no need for these matters to be removed from the opposed roll and placed on the settlement roll.

In terms of para 101.4 of the Consolidated Directive, ‘[t]hirty (30) unopposed divorce applications [are allocated] per judge, with [two] judges allocated to the divorce roll every Friday’. There is no readily available data dealing with how many orders for settled matters are granted on average per week since the establishment of settlement courts in Gauteng. There are regular and helpful directives issued by the Judge President or Deputy Judge Presidents in Gauteng, none of which have addressed the settlement courts. On 6 June 2022, a Directive for the Family Court in the Johannesburg High Court was issued. Paragraph 6 merely confirmed that the family court shall not hear unopposed divorces, which shall continue to be heard on Fridays by settlement courts.

The conduct of some of the judges (and acting judges) in unopposed matters needs to be evaluated. There is an urgent need for the leadership of the Gauteng Division to pay attention to the settlement courts and determine whether they are playing the role they were envisaged to play. In particular, the leadership must assess whether these courts, at times, do not unnecessarily increase the workload of these two divisions by removing matters that can be finalised from the roll based on technicalities. It cannot be disputed that judges can show their displeasure against legal representatives that are either inadequately prepared or failed to comply with the rules and directives of court. Regarding practice directives, para 6 of the Consolidated Directive mandates that before the matter is allocated a hearing date, a directive compliance declaration or certificate where compliance with the Consolidated Directive is certified and details are provided on how this directive is complied with. When the date is allocated, a judge’s secretary will provide further directives on behalf of the presiding judge that should be followed. Some of these directives are that the marriage certificate is to be certified, the Family Advocate’s endorsement is to be made available, the word version of the draft order and settlement agreement is to be e-mailed to the judges’ secretary by a specific date and that any document that is uploaded on CaseLines after the CaseLines bundle has been frozen is to be done with the permission of the presiding judge. It cannot be denied that the Consolidated Directive and further judge’s directive are meant to ensure that the matter runs smoothly and that legal representatives should comply therewith.

The challenge, however, is when any non-compliance with these directives leads to the removal of an unopposed divorce matter from a settlement roll that can easily be finalised, notwithstanding the identified non-compliance. The extent to which the presiding judge can overlook the identified non-compliance when all or some of the documents are placed before him or her that can enable him or her to dispose of the matter, is not clear in the settlement court. In ABSA Bank Limited v Wu Chongguang and Another (GJ) (unreported case no 39305/2013, 14-3-2014) (Wepener J) at para 15, Wepener J held that ‘[a]ttorneys who wish to deliberately disregard their duties to the court are, in my view, contemptuous of the very court they are required to assist to bring matters to a successful conclusion’. Further that ‘[h]aving regard to the behaviour of the applicant’s attorney and due to the deliberate failure to comply with the practice directive, the matter is removed from the roll. This matter may not be re-enrolled unless there is compliance with the practice directive of this division’. In this case, there was a constitutional right that was implicated, and the practice directive required that in an application for default judgment and declaring immovable property executable, the legal representative should file an affidavit stipulating personal service to the person whose house was about to be taken. In unopposed divorce proceedings, there is no clear constitutional right that is implicated that justifies the removal of matters that can easily be finalised from the roll.

In relation to unopposed divorces where not only both parties are before the court, but also their settlement agreement and uncertified marriage certificate is before the court, it is not clear whether the judge presiding in the settlement court is entitled to remove the matter from the roll on the basis that the marriage certificate is not certified as required by the directive. With respect, this is absurd and can easily be regarded as abuse of judicial discretion. It is also not clear whether the presiding officer, where any of the papers required to dispose of the matter are uploaded onto CaseLines without their permission after the CaseLines bundle has been frozen, is entitled to exercise discretion to remove the matter from the roll based on non-compliance with the directive by their secretary. In civil marriages, it is not entirely clear whether the presiding judge can remove the matter from the roll where a marriage certificate has not been uploaded on CaseLines when both parties are before the court, none of whom is disputing the marriage and all other documents have been placed before the court to dispose of the matter. Customary marriages can be proven by other means other than marriage certificate (LNM v MMM (GJ) (unreported case no 2020/11024, 11-6-2021) (Siwendu J) at para 8). There appears to be no reason for the insistence on marriage certificates in civil marriages where such certificates have been lost or misplaced, particularly where there is no dispute regarding the marriage and proper motivation was given in the supporting affidavit. It is difficult to understand why, when all or most of the documents that can enable the presiding officer to grant a divorce order are available, they would prioritise non-compliance with the directive and burden parties with applying for a hearing date again. I submit that this amounts to unnecessarily burdening the already heavy unopposed rolls where matters that can be disposed of are removed from the roll and unnecessarily kept alive.

In conclusion, the Constitutional Court in PFE International and Others v Industrial Development Corporation of South Africa Ltd 2013 (1) SA 1 (CC) at para 30, held that ‘superior courts enjoy the power to regulate their processes’ considering the interests of justice and where necessary can depart from their own rules. If these courts can deviate from their own rules, they can also deviate from their directives and disregard non-compliance in unopposed divorce matters in the interest of justice. Judges presiding over unopposed divorce rolls must self-evaluate and honestly reflect on whether matters they remove from the roll, deserve to be removed or should be finalised despite non-compliance with directives. This should not be interpreted as a call for lawyers to disregard court directives. Presiding officers in their ‘urge to punish’ legal representatives that failed to comply with directives, should never disregard the human beings represented by these lawyers, for they are entitled to have their settled divorce disputes finalised where that is possible, irrespective of their legal representatives’ non-compliance with court directives.

 

Clement Marumoagae LLB LLM Dip in Corporate Law (Wits) LLM (NWU) PhD (UCT) AIPSA Dip in Insolvency and Practice (UP) is an Associate Professor at the University of Witwatersrand and a legal practitioner at Marumoagae Attorneys Inc in Johannesburg.

This article was first published in De Rebus in 2023 (Jan/Feb) DR 19.

 

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