Gauteng Division Deputy Judge President Aubrey Ledwaba, gave the keynote address at the Clarks Attorneys fourth annual Family Law Conference in September 2017, in Sandton.
By Kgomotso Ramotsho
Clarks Attorneys held its fourth annual Family Law Conference in September 2017 in Sandton. Various speakers specialising in many fields of family law spoke at the conference. In his keynote address, Gauteng Division Deputy Judge President Aubrey Ledwaba, said that in his view he does not believe that family courts should be kept in a separate building away from the existing court structures. Judge Ledwaba said in 1996 specialised family courts were proposed in a draft policy development and it was planned that the specialised family law courts would deal with all family matters involving children, families, divorce, domestic violence and maintenance matters.
Judge Ledwaba said specialised family courts were housed in a different building to make it user-friendly to the people who would be attending the court. He added that such courts were made to have user-friendly court procedures to avoid rigorous cross-examinations to the parties involved. However, he noted that the court should not be separated from the existing structures, but instead the country should utilise resources that are available to improve and make family courts work in the interest of children.
Judge Ledwaba pointed out that children are the most vulnerable members of society and play a major role in family law disputes. He said that in a specialised family court environment, the focus is more on the child than any other person, which is beneficial to the child. He added that specialised courts can reduce stress and trauma to a child witness or victim and address special needs for families. He said in transferring the adjudication of composed legal issues or factual dispute of High Court to be adjudicated in specialised family court several desirable objectives are attained.
Victimisation of the victim
Researcher and Executive Director of Lawyers Against Abuse (LvA), in Johannesburg, Lindsay Henson, said gender violence is a problem and South Africa (SA) has one of the highest prevalence rates in the world. She added that this rate often multiplies in poor marginalised communities, such as the Diepsloot community. She pointed out that research conducted by the University of the Witwatersrand, found that 56% of men surveyed had admitted to committing some form of physical or sexual violence against a woman between the period of September 2016 to September 2017. One-third used both physical and sexual violence and 60% participated in multiple instances of violence.
Researcher and Executive Director of Lawyers Against Abuse, Lindsay Henson, said gender violence in South Africa has one of the highest prevalence rates in the world.
Ms Henson added that gender violence rate in Diepsloot, is more than double than in other parts of the country. She said the LvA found out that one reason for the continued violence in SA, is the failure of the criminal justice system on cases of gender based violence. She pointed out that in the environment such as Diepsloot, perpetrators of violence act with impunity and rarely have any kind of accountability for their actions, despite SA having progressive centric laws for the victims of gender based violence. She noted that the LvA believes that there is a gap in the implementation of those laws because of the way victims of violence experience justice is very different in the ways that the laws are written, especially if the victim is a poor black woman.
Ms Henson said it is well-documented that victims routinely experience secondary victimisation when seeking justice, including discriminatory police attitudes, victim blaming and traumatic court room environment for 18% court cases that get to trial. Ms Henson pointed out that LvA by accompanying their clients through the legal integration process, they were able to observe first hand frequent misapplication of the law and poor treatment of the victims by state servants. For example, she noted that domestic gender based violence victims are routinely turned away by police when they want to open a case; or are sent to apply for a protection order; or they are referred to mediation; or they are told that their protection order has ‘expired’.
Ms Henson added that despite the beautiful legislation SA has, there is a lack of a support system for the victims who are expected to navigate complex and technical legal processes, while facing institutional challenges. She noted that in most cases, victims do not have anyone they can turn to when the system – that is supposed to protect them – fails them. Furthermore, she said the legislative framework fails to take into account the trauma that is associated with violence, the negative impact of the psychological wellbeing of the victims and to create meaningful access to justice.
Ms Henson said the LvA believes that legal and support services that are professional and tailored to the specific needs of victims of gender based violence are critical to realise the intention of the legislature. However, she pointed out that very few organisations in SA are still providing this services. She noted that LvA was founded in late 2011 in order to fill the gap, to provide highly specialised and integrated legal and psychosocial support services to gender based violence victims and facilitate structural change through strategic engagements with state actors and the communities they serve.
Crossing the bridge between the law and practice in the Children’s Court
Presiding officer of the Children’s Court in Cape Town, Herman van der Merwe, said that presiding officer in children’s court have to find answers to a range of problems. He added that s 42 of the Children’s Act 38 of 2005 sets out to establish that sui generis is no longer new, but still a strange phenomenon and envisions, inter alia, that matters ‘be held in a room which is conductive to the informality of the proceedings and the active participation of all persons involved in the proceedings without compromising the prestige of the court’. He spoke about some key aspects that presiding officers deal with when presiding at children’s court.
Mr van der Merwe said that principles and atmosphere are key. He pointed out that the Children’s Act is based on principles and guidelines, which are based on yet another set of principles and guidelines, to which the Constitution adds certain international treaties and to which SA is a co-signatory. He added that some of these principles are s 60(3) which states ‘[c]hildren’s court proceedings must be conducted in an informal manner and, as far as possible, in a relaxed and non-adversarial atmosphere which is conducive to attaining the co-operation of everyone involved in the proceedings.’ He noted that s 6(4) in any matter concerning a child is an approach, which is conducive to conciliation and problem-solving and should be followed. A confrontational approach should be avoided at all costs.
Mr van der Merwe said that the problem in these informal and problem-solving sessions is that inevitably a lot of time is wasted. Such as when telling a party that something is irrelevant, or that a certain document they wish to hand in is not received. He pointed out that presiding officers of the children’s court should channel all these aspects into matters placed before them.
Mr van der Merwe also mentioned that the other key is how to listen to a child. He said that s 10 of the Children’s Act stated that every child of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration. He added that s 61 elaborated on this aspect stating ‘a child [must be allowed] to express a view and preference in the matter’. He noted that legal practitioners often lament ‘It is time to hear the voice of the child,’ Mr van der Merwe said this is a good slogan, but a good slogan is not always good in law.
Mr van der Merwe pointed out that in practice it is a bit trickier than it sounds. ‘We distinguish between direct (where the court interviews and/or observes the child), and direct child participation, that is where we rely on the opinion of an expert, typically a social worker, psychologist or the family advocate,’ Mr van der Merwe said. He added that in regard of this provision legal practitioners should look at s 29(5)(a) and s 62 of the Children’s Act.
A review on lobolo and the Recognition of Customary Marriages Act
Senior Associate at Clarks Attorneys, Sithembiso Mabaso, discussed lobolo at the firm’s conference.
Senior Associate at Clarks Attorneys, Sithembiso Mabaso, said in terms of the Recognition of Customary Marriages Act 120 of 1998 (the Act), lobolo is defined as property in cash or kind. He added that the Act goes on to list other names in terms of the concept known in different languages or different indigenous languages. He pointed out that lobolo is cash or kind that a prospective husband or head of his family undertakes to give the family of the prospective wife’s family in consideration of the customary marriage.
Mr Mabaso added that it is a concept that is widely accepted as the cornerstone of customary marriage and a major factor that is distinguished between civil and customary marriage. He said the Act came into effect in 2000 and it was a brave attempt by the Legislature to regulate customary marriages. He noted that the Act was long overdue and necessary. However, Mr Mabaso said that there are some issues relating to lobolo and that the Recognition of Customary Marriages Act has had a dwarfing effect on the importance of lobolo.
Mr Mabaso said if one looks at the definition of lobolo in the Act, it does not properly capture and explain the concept of lobolo. He added that the other issue is that in the entire Act, lobolo is only referred to once. He said if lobolo is the cornerstone of customary marriages, here is legislation apparently promulgated to give effect to customary marriages that the only cornerstone of the concept referred to in the Act is in the definition.
Mr Mabaso said the definition explains what is given in respect of lobolo, but added that the biggest problem he had with the definition is that it fails to understand that when people speak of lobolo, it is actually a transaction. He noted that the Act does not recognise that there ought to be some sort of transaction be it cash or in kind. He pointed out that generally the currency used at a lobolo negotiation is cattle, although the transaction maybe be in cash, but when negotiators are sitting at a table the prospective wife’s family will ask for a certain number of cattle.
Socio-Economic Rights Institute of South Africa attorney, Thulani Nkosi, discussed whether lobolo can be claimed back when divorce occurs.
Mr Mabaso pointed out that the problem is the definition of the Act does not appreciate or state that there ought to be a transaction and this follows onto other aspects of the Act. He added that the marriage must have been negotiated or celebrated in accordance to customary law. He said this highlights the problem caused by the inadequacy of the definition. Mr Mabaso pointed out that lobolo is a concept that is deeply rooted in cultural beliefs. However, he said over time the courts have grappled with the lobolo matter and in several judgments judges have said that payment of lobolo is a requirement in customary law. He added that the debate of whether lobolo is a requirement must end, but the question that should be asked is: What happens to lobolo when a divorce occurs?
Socio-Economic Rights Institute of South Africa Attorney, Thulani Nkosi, noted lobolo can be claimed back, but asked from whom will it be claimed back? He said he found that in the old authorities, which came from the traditional courts, the courts made clear that you can never have a customary marriage without either the payment of lobolo or at least the tender of lobolo. He added that traditional courts further went on to say that if a marriage is dissolved, the word used would not be ‘divorce’ but ‘dissolution’, for example, if there is infidelity on the part of each spouse, the family mechanism that deals with the resolution of family disputes were unable to make parties reconcile.
Mr Nkosi said lobolo is rendered in respect of a wife but it does not go directly to her, lobolo normally goes to the wife’s family. He asked that if the wife decided to dissolves the customary marriage, then against whom can the lobolo be claimed back? He pointed out that the problem is that the Act does not list lobolo, but does define it in a difficult way. He noted that lobolo is so important in an African sense, that even those who intend to partake in a civil marriage feel compelled to pay lobolo.
Mr Nkosi added that although lobolo is not specified there are instances where a dispute arises, where the spouse says ‘I have paid lobolo’, therefore, a customary marriage existed between that person and their spouse. He said further questions that must be asked was the underlying reason for that person to do so? He pointed out that lobolo is important, but said lobolo alone does not make a customary marriage even though the Act gives an impression that a customary marriage is a one day event.
Mr Nkosi said that is not the case, because in a customary marriage comes a chain of events that must take place and lobolo is a link in that chain of events. He added that if that is not recognised, there is going to be difficulties where people just do not know what the substance of customary marriage is. He pointed out that without lobolo, even though a couple have gone and seen a marriage officer, in the eyes of the community all the couple is doing is cohabiting.
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2018 (Jan/Feb) DR 10.
