COMMISSION OF INQUIRY INTO THE RATIONALISATION OF THE PROVINCIAL AND LOCAL DIVISIONS OF THE SUPREME COURT

THIRD AND FINAL REPORT
VOLUME 1
BOOK 1

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Mr President

We, the undersigned, appointed by you as members of the Commission of Inquiry into the Rationalisation of the Provincial and Local Divisions of the Supreme Court, have the honour to submit to you this Third and Final Report.

G.G. Hoexter (Chairman)

PRETORIA ...... December 1997

R.N. Leon (Member)

JOHANNESBURG ...... December 1997

A.N. Jappie (Member)

DURBAN ...... December 1997

G.S.S. Maluleke (Member)

KEMPTON PARK ...... December 1997

VOLUME I

PARTS ONE AND TWO

TABLE OF CONTENTS

INTRODUCTION

THE SCHEME OF THE THIRD AND FINAL REPORT AND A SYNOPSIS OF THE RECOMMENDATIONS
THEREIN CONTAINED

I. THE SCHEME OF THE REPORT

II. SYNOPSIS

1. SUMMARY OF RECOMMENDATIONS IN REGARD TO A FAMILY COURT OF COMPREHENSIVE JURISDICTION [see PART TWO in BOOK 1 ]
2. THE COMMISSION'S RECOMMENDATION IN REGARD TO A PROPOSED SPECIALIST INTELLECTUAL PROPERTY COURT [ see SECTION (A) OF PART THREE in BOOK 2 ]
3. THE COMMISSION'S RECOMMENDATION IN REGARD TO A PROPOSED SPECIALIST INSOLVENCY COURT [ see SECTION (B) OF PART THREE IN BOOK 2 ]
4. THE COMMISSION'S FINDINGS AND RECOMMENDATIONS IN REGARD TO CASE MANAGEMENT AND COURT-ANNEXED ALTERNATIVE DISPUTE RESOLUTION (ADR) [ see PART FOUR in BOOK 3 ]
5. THE COMMISSION'S FINDINGS AND RECOMMENDATIONS IN REGARD TO A CIRCUIT SYSTEM FOR THE ADJUDICATION OF CIVIL CASES [see PART FOUR in BOOK 3 ]
6. THE COMMISSION'S FINDINGS AND RECOMMENDATIONS IN REGARD TO THE COMMERCIAL COURT [ see PART FOUR in BOOK 3 ]
7. THE COMMISSION'S FINDINGS AND RECOMMENDATIONS IN REGARD TO A DEPARTMENT FOR COURTS IN SOUTH AFRICA [ see PART FOUR in BOOK 3 ]
8. THE COMMISSION'S RECOMMENDATIONS FOR IMPROVING ACCESS TO JUSTICE BY MEANS OF AN INFORMATION SERVICE TO THE PUBLIC [ see PART FOUR in BOOK 3 ]
9. THE COMMISSION'S RECOMMENDATION TO SPEED UP THE MOVEMENT OF CRIMINAL TRIALS THROUGH OUR COURT BY MEANS OF FAST-TRACK CRIMINAL COURTS [ see PART FOUR in BOOK 3 ]
10. THE COMMISSION'S RECOMMENDATIONS IN REGARD TO PARAGRAPH (1)(d) OF ITS TERMS OF REFERENCE [ see PART FIVE in BOOK 3 ]

PART ONE

ACKNOWLEDGMENTS

PART TWO

THE NEED FOR THE ESTABLISHMENT IN SOUTH AFRICA OF A SPECIALIST FAMILY COURT OF COMPREHENSIVE JURISDICTION

CHAPTER ONE

1. INTRODUCTION

CHAPTER TWO

EARLIER RECOMMENDATIONS FOR THE ESTABLISHMENT OF A FAMILY COURT IN SOUTH AFRICA

2.1 THE 1983 REPORT OF THE COMMISSION OF INQUIRY INTO THE STRUCTURE AND FUNCTIONING OF THE COURTS

CHAPTER THREE

AN OUTLINE OF SOUTH AFRICAN LEGAL REFORM IN REGARD TO FAMILY LAW ADJUDICATION FROM 1983 TO 1997

3.1 THE FAMILY COURT BILL 62 OF 1985

3.2 THE DIVORCE AMENDMENT BILL OF 1985

3.3 THE MEDIATION IN CERTAIN DIVORCE MATTERS ACT, NO 24 OF 1987

3.4 THE REFERENCE TO "MEDIATION" IN THE TITLE TO ACT NO 24 OF 1987 IS MISLEADING

3.5 A GLARING SHORTCOMING IN ACT 24 OF 1987

3.6 DESPITE THE DEFECTS IN ACT 24 OF 1987 THE OFFICE OF THE FAMILY ADVOCATE

NEVERTHELESS REPRESENTS AN IMPORTANT FIRST STEP TOWARDS THE REALISATION OF THE ULTIMATE GOAL OF A FAMILY COURT OF COMPREHENSIVE JURISDICTION

3.7 THE DRAFT DIVORCE AMENDMENT BILL OF 1992

3.8 THE MAGISTRATES' COURTS AMENDMENT ACT NO 120 OF 1993

3.9 ACT 120 OF 1993 HAS BEEN WIDELY CRITICISED

3.10 A PILOT PROJECT FOR THE FAMILY COURT ENVISAGED IN ACT 120 OF 1993 50

3.11 THE RACIAL EXCLUSIVITY OF THE BLACK DIVORCE COURTS AND THE

"DE-RACIALISATION " THEREOF BY THE DIVORCE COURTS AMENDMENT ACT, 1997

CHAPTER FOUR

A SURVEY OF THE SERVICES TO THE COMMUNITY PERFORMED BY THE VARIOUS OFFICES OF THE FAMILY ADVOCATE IN SOUTH AFRICA AND AN ASSESSMENT OF THE CHIEF PROBLEMS EXPERIENCED BY FAMILY ADVOCATES

4.2 THE CHIEF FAMILY ADVOCATE

4.3 THE OFFICE OF THE FAMILY ADVOCATE IN JOHANNESBURG

4.4 THE OFFICE OF THE FAMILY ADVOCATE IN PRETORIA

4.5 THE OFFICE OF THE FAMILY ADVOCATE IN CAPE TOWN

4.6 THE OFFICE OF THE FAMILY ADVOCATE IN DURBAN

4.7 THE OFFICE OF THE FAMILY ADVOCATE IN BLOEMFONTEIN

4.8 THE OFFICE OF THE FAMILY ADVOCATE IN PORT ELIZABETH

CHAPTER FIVE

A BRIEF DESCRIPTION OF THE STRUCTURE AND FUNCTIONING OF THE FAMILY COURT OF WESTERN AUSTRALIA

5.1 THE STATUTORY BASIS OF THE COURT

5.2 FEDERAL AND STATE JURISDICTION

5.3 THE BENCH OF THE FAMILY COURT OF WESTERN AUSTRALIA

5.4 THE OFFICERS OF THE FAMILY COURT

5.5 MAGISTRATES' COURTS OF SUMMARY JURISDICTION

5.6 FAMILY COURT COUNSELLING SERVICE

5.7 INFORMATION SESSIONS

5.8 CONFERENCES WITH REGISTRARS

5.9 MEDIATION SERVICE

5.10 DISPOSAL OF WORK AND WAITING TIME

5.11 COLLECTION OF MAINTENANCE PAYMENTS

5.12 CHILD-MINDING CENTRE

5.13 CIRCUIT COURTS

5.14 APPEALS

5.15 INFORMALITY OF PROCEDURE

CHAPTER SIX

A BRIEF DESCRIPTION OF THE STRUCTURE AND FUNCTIONING OF THE FAMILY COURT OF NEW ZEALAND

6.1 ACKNOWLEDGMENTS

6.2 THE STATUTORY BASIS OF THE COURT

6.3 THE BENCH OF THE NEW ZEALAND FAMILY COURT

6.4 THE JURISDICTION OF THE FAMILY COURT 84

6.5 THE EMPHASIS ON DISPUTE RESOLUTION WITHOUT A COURT HEARING 85

6.5.1 COUNSELLING

6.5.2 MEDIATION

6.5.3 PRE-TRIAL CONFERENCE

6.6 THE SPECIAL POSITION OF THE CHILD

6.6.1 LEGAL REPRESENTATION OF CHILDREN

6.6.2 THE USE OF INDEPENDENT EXPERTS

6.7 PRIVACY

6.8 AN ATMOSPHERE OF INFORMALITY

6.9 PHYSICAL LOCATION OF THE FAMILY COURT

CHAPTER SEVEN

A SUMMARY OF THE MAIN WRITTEN AND ORAL SUBMISSIONS MADE BY INTERESTED PARTIES TO THE COMMISSION IN REGARD TO THE ISSUE OF A FAMILY COURT IN SOUTH AFRICA

7.2 THE MANNER IN WHICH UNOPPOSED DIVORCES ARE DEALT WITH IN THE HIGH COURT
7.3 THE MANNER IN WHICH APPLICATIONS FOR MAINTENANCE ARE DEALT WITH IN THE MAGISTRATES' COURTS

7.4 THERE IS A GROWING AWARENESS OF THE NEED FOR SPECIALIST TREATMENT OF FAMILY LAW LITIGATION

7.5 THE PIVOTAL ROLE OF THE OFFICE OF THE FAMILY ADVOCATE AND THE POSSIBLE EXPANSION OF ITS FUNCTIONS

7.6 THE DIVERGENT VIEWS HELD BY VARIOUS INTERESTED PARTIES IN REGARD TO THE PARTICULAR LEVEL WITHIN OUR HIERARCHY OF SUPERIOR AND LOWER COURTS AT WHICH THE PROPOSED FAMILY COURT SHOULD FUNCTION

7.7 THE PROPONENTS OF A FAMILY COURT AT THE LEVEL OF A SUPERIOR COURT

7.8 THE PROPONENTS OF A TWO-TIERED FAMILY COURT

7.9 THE PROPONENTS OF A FAMILY COURT AT THE LEVEL OF A LOWER COURT

7.10 RESISTANCE TO THE IDEA OF A FAMILY COURT

7.11 THE EXTENT OF THE JURISDICTION TO BE EXERCISED BY THE PROPOSED FAMILY COURT

CHAPTER EIGHT

THE BROAD GUIDE-LINES ADOPTED BY THE COMMISSION AND ITS MAIN

CONCLUSIONS

8.1 THE RATIONALE OF FAMILY COURTS

8.2 SOUTH AFRICA NEEDS A FAMILY COURT

8.3 SINCE 1983 ATTEMPTS AT LEGISLATIVE REFORM WITH A VIEW TO THE ESTABLISH- MENT OF SOME SORT OF FAMILY COURT HAVE BEEN HALF-HEARTED AND INEPT

8.4 DESPITE THE RUDIMENTARY NATURE OF ITS FUNCTIONS THE OFFICE OF THE FAMILY ADVOCATE HAS AN INFRASTRUCTURE WHICH THROUGH APPROPRIATE LEGISLATION MAY BE EXPANDED AND DEVELOPED INTO A PROPER FAMILY COUNSELLING SERVICE CAPABLE OF SUSTAINING A FAMILY COURT

8.5 FAMILY COUNSELLORS SHOULD BE MEMBERS OF A SEPARATE SPECIALISED BRANCH OF THE PUBLIC SERVICE WITH ITS OWN BUDGET

8.6 THE PROFESSIONAL QUALIFICATIONS, THE EXPERIENCE AND THE PERSONAL QUALITIES REQUIRED OF A PRESIDING OFFICER IN THE FAMILY COURT

8.7 IN THE OPINION OF THE COMMISSION SOUTH AFRICA'S NEEDS WOULD BE SATISFIED NEITHER BY A FAMILY COURT FUNCTIONING AS A LOWER COURT NOR BY ANY HYBRID FAMILY COURT OF WHICH A LOWER COURT IS AN INTEGRAL PART

8.8 THE FAMILY COURT SHOULD BE AN INDEPENDENT SUPERIOR COURT WITH ITS OWN SPECIALISED STRUCTURE

8.9 THE JURISDICTION TO BE EXERCISED BY THE PROPOSED FAMILY COURT

8.10 THE FAMILY COURT WILL HEAR FAMILY LAW CASES ALSO BY MEANS OF A CIRCUIT COURT SYSTEM

8.11 THE FAMILY COURT SHOULD BE LAUNCHED BY WAY OF A PILOT PROJECT AND THE PIECEMEAL PHASING OUT OF THE DIVORCE COURTS ESTABLISHED UNDER SECTION 10 OF ACT 9 OF 1929 126

8.12 CONCURRENT JURISDICTION WITH OTHER COURTS

8.13 APPEALS FROM THE FAMILY COURT

8.14 PHYSICAL LOCATION AND ACCOMMODATION OF THE FAMILY COURT

CHAPTER NINE

THE COMMISSION'S UNANIMOUS RECOMMENDATIONS FOR THE ESTABLISHMENT IN SOUTH AFRICA OF A FAMILY COURT

ANNEXURE "i "

A COPY OF THE RECOMMENDATIONS REGARDING THE CREATION OF A FAMILY COURT MADE IN THE 1983 REPORT OF THE COMMISSION OF INQUIRY INTO THE STRUCTURE AND FUNCTIONING OF THE COURTS

INTRODUCTION

I. THE SCHEME OF THE REPORT

(A) The Third and Final Report consists of three separate Volumes.

(B) VOLUME I contains the Commission's findings and recommendations in regard to those matters raised in the Terms of Reference not already dealt with in the First and Second Interim Reports.

(C) VOLUME II contains copies of (1) certain written submissions made by interested parties and (2) other documents relevant to the issues explored in VOLUME I.

(D) VOLUME III contains extracts from oral submissions made by interested parties at public hearings of the Commission which submissions are relevant to the issues explored in VOLUME I.

(E) VOLUME I comprises five separate PARTS.

(F) PART ONE [ ACKNOWLEDGMENTS ] consists of a list of the names of the many persons who gave much assistance to the Commission in connection with the overseas fact-finding mission undertaken by it from 16 August to 9 October 1996. PART ONE is to be found in BOOK 1 of VOLUME I.

(G) PART TWO is also to be found in BOOK 1 of VOLUME I. PART TWO contains the Commission's findings and recommendations in regard to the need for the establishment in South Africa of a specialised Family Court of comprehensive jurisdiction. A summary of the recommendations in regard to a Family Court are set forth in paragraph 1 of the SYNOPSIS hereunder.

(H) PART THREE is to be found in BOOK 2 of VOLUME I. PART THREE consists respectively of SECTION (A) and SECTION (B).

(J) SECTION (A) of PART THREE consists of the Commission's findings and recommendations in regard to a proposal that there should be established in South Africa a specialist court for Intellectual Property Law matters. The Commission's recommendation in regard thereto is reproduced in paragraph 2 of the SYNOPSIS hereunder.

(K) SECTION (B) of PART THREE contains the Commission's findings and recommendations in regard to a proposal that there should be established in South Africa a specialist insolvency court. The Commission's recommendation in regard thereto is reproduced in paragraph 3 of the SYNOPSIS hereunder.

(L) PART FOUR is to be found in BOOK 3 of VOLUME I. PART FOUR contains the Commission's findings and recommendations in regard to various issues pertaining to access to justice, including, inter alia, the need in South Africa for (1) case management ; court-annexed Alternative Dispute Resolution ; and the exchange of witness summaries ; (2) a circuit court system for the adjudication of civil cases ; and (3) a commercial court. A summary of the Commission's findings and recommendations on the abovementioned (and other related) issues is to be found in paragraphs 4 to 9 of the SYNOPSIS hereunder.

(M) PART FIVE (which is also to be found in BOOK 3) contains the Commission's findings and recommendations in regard to a possible expansion of the original civil jurisdiction of the divisions of the High Court mooted in paragraph (1)(d) of the Terms of Reference. The Commission's recommendations in regard thereto are reproduced in paragraph 10 of the SYNOPSIS hereunder.

II. SYNOPSIS

1. SUMMARY OF RECOMMENDATIONS IN REGARD TO A FAMILY COURT OF COMPREHENSIVE JURISDICTION [SEE PART TWO IN BOOK 1 ] :

1.1 The Commission unanimously recommends the establishment in South Africa of a specialist Family Court of comprehensive jurisdiction. It will be an independent Court having the status of a Superior Court.

1.2 As an essential first step towards the establishment of a Family Court the Mediation in Certain Divorce Matters Act, No 24 of 1987, must be repealed and replaced by statute to by styled " THE FAMILY ADVOCATE AND FAMILY COUNSELLING SERVICE ACT " [ the FAFCS Act ].

1.3 The FAFCS Act will, inter alia, give the Family Advocate locus standi in all divorces, irrespective of the racial groups to which the parties belong, and in customary unions and in religious marriages not recognised by the civil law. It will also give the Family Advocate locus standi to inquire into and to report to the Family Court in connection with any child, whether born in or out of wedlock ; and whether or not a divorce action affecting the child has been instituted.

1.4 The FAFCS Act will establish, as part of the Family Advocate's office, a FAMILY COUNSELLING SERVICE , which will be staffed by a separate specialised Branch of Family Counsellors (within either the Department of Justice or the Department of Welfare) designed to provide experienced social welfare workers to the Office of the Family Advocate on a regular and reliable basis. This Branch should have its own budget.

1.5 The Family Counselling Service will be attached to the Family Court, and it will provide the social agency component in the Court. In addition the services of the Family Counselling Service will be available to members of the public, free of charge, and irrespective whether or not they are involved in divorce or other family litigation.

1.6 The Family Counselling Service will, inter alia, provide :-

1. the reception process at the reception centre of the Family Court ;
2. the conciliation process aimed at helping estranged spouses to communicate directly with each other in order to make their parting less traumatic for them and their children ;
3. a supporting service for the court component of the Family Court, by ensuring that any further social welfare investigation which the Court may require is promptly undertaken.

1.7 The passing of the FAFCS Act will be followed by the passing of a statute to be styled "THE FAMILY COURT ACT" to provide for the establishment of a Family Court of comprehensive jurisdiction.

1.8 There will ultimately be a Family Court in each provincial division of the High Court in which there is an Office of the Family Advocate. The Family Court will also proceed on circuit in rural areas. As and when a Family Court is established within the territorial area of any provincial division, then within that area the jurisdiction of the divorce courts established under section 10 of Act 9 of 1929 (whether functioning as at present or whether functioning pursuant to the Divorce Courts Amendment Act, 1997), should be phased out.

1.9 The Judges in the Family Court will be designated "FAMILY COURT JUDGES". The procedure for their appointment and their salaries will be the same as those of High Court Judges. Their term of office (subject to renewal) will be seven years.

1.10 Family Court Judges will be assisted by judicial officers called FAMILY COURT COMMISSIONERS who will perform certain judicial functions (such as hearing undefended divorces, maintenance cases, and interlocutory applications) and who will preside at pre-trial and mediation conferences. Family Court Commissioners will be appointed by the Minister of Justice upon the recommendation of a small Appointments Committee consisting of Family Law experts whose chairman will be a Family Court Judge. They will be appointed for a period of seven years ; and they will be paid a salary equivalent to 75% of a Judge's salary.

1.11 Candidates for appointment either as a Family Court Judge or a Family Court Commissioner will be required to have : (a) an appropriate professional legal qualification ; and (b) appropriate practical experience in Family Law work ; and (c) a predilection for Family Law work in all its ramifications ; and (d) a compassionate personality.

1.12 Each division of the Family Court will have its own Registry and Registrar. It will also have a staff of trained clerks who will assist unrepresented litigants both at the seat of the Court and on circuit.

1.13 At each circuit town visited by the Family Court the clerk of the local Magistrate's Court will act on behalf of the Registrar by receiving pleadings filed by litigants whose matters will be heard at the forthcoming circuit.

1.14 Each division of the Family Court will have an administrative officer styled "THE COUNSELLING CO-ORDINATOR" who will be in charge of the Family Court's social agency component provided by the Family Counselling Service.

1.15 The Family Court will have jurisdiction concurrently with the High Court :-

1.  to hear those matters which are at present heard in the divorce court of the High Court and which, in addition to divorce itself, will include all matters ancillary to divorce such as the division of matrimonial assets ; maintenance for a spouse and minor children ; custody of and access to minor children ; and guardianship of minor children ; applications pendente lite for a contribution towards the costs of a divorce action, for maintenance and for interim custody of and access to children ; applications for maintenance as between parent and child and grandparent and grandchild ; and applications for interdicts in matrimonial matters ;
2. to hear the matters at present heard by the High Court under the Age of Majority Act, 1972 ;
3. to grant consent to the marriage of a minor if such minor's parent or guardian refuses such consent ; which power is at present exercised by a Judge of the High Court under sec 25(4) of the Marriage Act, 1961 ;
4. to hear cases in which paternity is sought to be determined and which affect the status of a woman or child.

1.16 The Family Court will have jurisdiction to hear matters involving disputes between a man and a women arising from a spousal union subsisting (or which earlier subsisted) between them, which union is recognised by their own customs or religious beliefs but not by our civil marriage laws.

1.17 The Family Court will have jurisdiction concurrently with the Magistrates' Courts :- (a) to hear the matters at present heard by the Commissioner of Child Welfare under the Child Care Act, No 74 of 1983 ; (b) to hear the matters at present heard in the Maintenance Court under the Maintenance Act, 1963 ; (c) to carry out the duties and exercise the powers assigned to Magistrates in terms of Chapter 3 (see secs 8 to 18) of the Mental Health Act, 1973 ; to investigate the accommodation or care of aged or debilitated persons under sec 6 of the Aged Persons Act, 1967, and to carry out the duties under secs 5(3) and 5(4) of that Act ; to hold enquiries under the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act, 1971, and commit persons to rehabilitation centres.

1.18 The Family Court will not exercise any criminal jurisdiction.

1.19. Family Courts will be launched by means of a single monitored pilot project operating in the territory falling within the jurisdiction of the Natal Provincial Division of the High Court. Such pilot Court will also undertake regular circuits to country districts within the Provincial Division.

1.20 From the date of the establishment of the Family Court in the province of KwaZulu-Natal no further cases will be enrolled in the divorce courts established under section 10 of Act 9 of 1929 (whether functioning as at present or whether functioning pursuant to the Divorce Courts Amendment Act, 1997), in any district falling within the jurisdiction of the Natal Provincial Division. Part-heard cases in these divorce courts will be completed in the divorce court concerned by the judicial officer seized of the particular case.

1.21 The pilot project in KwaZulu-Natal will be monitored for a period of twelve months, whereafter the Government will decide when and within the area of what other provincial divisions of the High Court in South Africa Family Courts should be established.

1.22 From the date of the establishment of any further Family Court within the area of any provincial division of the High Court elsewhere in South Africa :-

1. no further cases will be enrolled in the divorce courts established under section 10 of Act 9 of 1929, (whether functioning as at present on whether functioning pursuant to the Divorce Courts Amendment Act, 1997) in any district falling within the area of jurisdiction of such provincial division ;
2. part-heard cases in the divorce courts mentioned in (a) above will be completed by the judicial officer seized of the particular case.

1.23 The Family Court will have a very modest tariff of costs which will be based essentially on the tariff of costs in the Magistrate's Court.

1.24 In the Family Court, divorce will not be granted by any system of summary dissolution of marriage under which the plaintiff's testimony will be accepted in affidavit form. The plaintiff will be required to testify in open court.

1.25 As far as is reasonably possible the Family Court will be housed separately from other courts ; and, where that is not possible, the Family Court should have its own separate entrance. The lay-out and appointments of the Family Court will be such as to create a relaxed and informal atmosphere with cheerful waiting-rooms equipped with playthings for children ; and comfortable offices in which interviews and conciliation sessions may be conducted. Adequate child-care facilities for infants are essential. At the reception centre an informed and sympathetic receptionist will be on duty.

1.26 Appeals from the judgments of the Family Court will lie to the Full Court of the High Court.

THE COMMISSION'S RECOMMENDATION IN REGARD TO A PROPOSED SPECIALIST INTELLECTUAL PROPERTY LAW COURT [ see SECTION (A) OF PART THREE in BOOK 2 ]

2.1 The unanimous recommendation of the Commission is that a specialist intellectual property law court should NOT be established in South Africa.

THE COMMISSION'S RECOMMENDATION IN REGARD TO A PROPOSED SPECIALIST INSOLVENCY COURT [ see SECTION (B) OF PART THREE IN BOOK 2 ] :

3.1 The unanimous recommendation of the Commission is that a specialist insolvency court should NOT be established in South Africa.

THE COMMISSION'S FINDINGS AND RECOMMENDATIONS IN REGARD TO CASE MANAGEMENT AND COURT-ANNEXED ALTERNATIVE DISPUTE RESOLUTION (ADR) [ see PART FOUR in BOOK 3 ] :

4.1 FINDINGS :

4.1.1 The progress of defended actions through the High Court in South Africa is too sluggish and too expensive because of unnecessary delays. The delays supervene because the court supinely allows the parties to dictate the pace of litigation.

4.1.2 Radical reform is essential. Case management and court-annexed ADR are urgently needed in the High Court in South Africa.

4.1.3 Case management involves control of the pace and manner of litigation by the court and not the parties.

4.1.4 The case management model best suited to South Africa is the basic model involving a routine court control which requires the parties to report to the court at a number of strategically fixed intervals or events known as "milestones". The intervals must be just long enough to allow proper preparation by the parties and just short enough to require the parties to act briskly. There must be strict compliance with deadlines.

4.1.5 The form of court-annexed ADR best suited to South Africa is mediation. Judges and those members of the court's personnel involved in case management must attend training courses in mediation. The Judges themselves, however, should not participate in mediation sessions.

4.1.6 The new Rule 37A [ see GN R1352 published on 10 October 1997 ], which applies only to the Cape of Good Hope Provincial Division [CPD], is to be welcomed as the first step in this country towards case management. However, its provisions do not go nearly far enough to sustain the operation of an effective case management system in the High Court.

4.1.7 Case management should be introduced to South Africa experimentally by means of a monitored Case Management Pilot Project. The obvious choice of a venue for the pilot project is the CPD.

4.2 RECOMMENDATIONS :

4.2.1 As soon as is reasonably possible a case management pilot project [ CM pilot project ] should be launched in the CPD.

4.2.2 The launching of the CM pilot project should be preceded :-

(a) by the installation of a COMPUTER SYSTEM TOGETHER WITH THE APPROPRIATE SOFTWARE in the court building of the CPD ;

(b) by the appointment to the court personnel of the CPD (at a market-related salary) of a CASE MANAGEMENT CONTROLLER [CM controller ], who shall be an advocate or attorney experienced in High Court civil litigation who has practised for at least ten years ;

(c) by the compilation by the JUDGE PRESIDENT of the CPD of a list of suitably qualified and experienced mediators within the metropolitan area of Cape Town who are prepared to preside at mediation sessions held as part of a court-annexed mediation service.

4.2.3 The CM controller will be in charge of the administration and monitoring of the CM pilot project ; and he or she will also preside at the PROGRESS CONFERENCE.

4.2.4 The parties will be obliged to exchange WITNESS SUMMARIES and to file them with the court BEFORE the Progress Conference is held. The witness summaries will be open to the scrutiny of the CM controller.

4.2.5 The Judge who makes directions pursuant to the MINUTE must be empowered to refer the matter to court-annexed mediation.

5. THE COMMISSION'S FINDINGS AND RECOMMENDATIONS IN REGARD TO A CIRCUIT SYSTEM FOR THE ADJUDICATION OF CIVIL CASES[see PART FOUR in BOOK 3] :

5.1 FINDINGS :

5.1.1 The regular civil circuits held in the Western Cape Province function smoothly and they improve access to justice for civil litigants living in or near the circuit towns.

5.1.2 At present no civil circuits are needed in the provinces of Gauteng, Free State, KwaZulu-Natal and the Eastern Cape. No civil circuits are needed in the Northern Cape Province additional to the civil circuits about to be established by the Judge President of that province.

5.1.3 Unless and until effect is given to the Commission's recommendations in its First Interim Report in regard to the new provinces of Mpumalanga, the Northern Province and North West [ the adjoining provinces ], it may well be that access to justice for civil justice in the larger towns of the adjoining provinces would be enhanced if they were to receive regular visits from a civil circuit court.

5.2 RECOMMENDATIONS :

5.2.1 Until effect is given to the First Interim Report's recommendations in regard to the adjoining provinces, the relevant Judge President in Gauteng should consult with the Attorneys Association in the larger towns in the adjoining provinces (such as Nelspruit, Middelburg, Pietersburg, Potchefstroom, Klerksdorp and Rustenburg) in order to determine whether or not a need for a civil circuit in any such town exists.

5.2.2 Should a civil circuit in any of the larger towns in the adjoining provinces prove to be necessary, the Western Cape procedure of a pre-trial conference held in the circuit town six weeks in advance of the actual circuit should be adopted.

THE COMMISSION'S FINDINGS AND RECOMMENDATIONS IN REGARD TO THE COMMERCIAL COURT [ see PART FOUR in BOOK 3 ] :

6.1 FINDINGS :

6.1.1 In Johannesburg (but nowhere else in the country) there is a need for a special forum within the High Court for the resolution of complex commercial disputes.

6.1.2 In order that the Johannesburg Commercial Court should function properly the designation of a case as a commercial action should not require the approval or consent of both parties.

6.1.3 A commercial case should not be accorded special treatment in the form of individual case management in preference to a non-commercial action whose speedy disposition, objectively viewed, is a matter of urgency for either or both parties.

6.2 RECOMMENDATIONS :

6.2.1 The Commercial Court in Johannesburg should continue and the Supreme Court Act should be amended to give authority to the Judge President to designate an action as a commercial action upon the application of either party to the action.

6.2.2 The exchange of WITNESS SUMMARIES should be mandatory in all cases before the Commercial Court.

7. THE COMMISSION'S FINDINGS AND RECOMMENDATIONS IN REGARD TO A DEPARTMENT FOR COURTS IN SOUTH AFRICA [ see PART FOUR in BOOK 3 ] :

7.1 FINDINGS :

7.1.1 The administration of the courts and the provision of adequate support services for the judiciary are highly specialised functions. In South Africa the courts are administered by the Department of Justice in an unsatisfactory fashion.

7.1.2 The court system would function more efficiently and productively if South Africa were to have its own Department for Courts.

7.2 RECOMMENDATIONS :

7.2.1 The feasibility of establishing a Department for Courts in South Africa should be considered as a matter of urgency.

7.2.2 A small committee composed of a few senior Judges, a senior Magistrate, a senior official in the Department of Justice and a chartered accountant should undertake in New Zealand an in-depth study of the New Zealand Department for Courts. Thereafter the committee should report its findings and recommendations to the President.

8. THE COMMISSION'S RECOMMENDATIONS FOR IMPROVING ACCESS TO JUSTICE BY MEANS OF AN INFORMATION SERVICE TO THE PUBLIC
[ see PART FOUR in BOOK 3 ] :

8.1 A systematic legal information service should be devised and implemented nation-wide by the Department of Justice with due regard to the multi-lingual composition of our population.

8.2 The aim of the programme must be to explain to public how the courts function and from what agencies in the community a citizen may obtain basic legal advice.

8.3 Such information should be disseminated by means of the Internet and by means of attractive brochures couched in simple and clear language. The brochures should be freely available to the public at every magistrate's court in the country ; and bulk deliveries of them should be made to all secondary schools throughout the land.

9. THE COMMISSION'S RECOMMENDATION TO SPEED UP THE MOVEMENT OF CRIMINAL TRIALS THROUGH OUR COURT BY MEANS OF FAST-TRACK CRIMINAL COURTS [ see PART FOUR in BOOK 3 ] :

Although its Terms of Reference relate to civil litigation in the High Court the Commission has decided nevertheless strongly to recommend the introduction, in both our superior and lower trial courts, of a FAST-TRACK CRIMINAL COURT such as has been established in the District Court of Western Australia, and whose essential features are described in paragraph 2.3 in PART FOUR (see BOOK 3 of VOLUME I) of this Report.

10. THE COMMISSION'S RECOMMENDATIONS IN REGARD TO PARAGRAPH (1)(d) OF ITS TERMS OF REFERENCE [ see PART FIVE in BOOK 3 ] :

10.1 The original civil jurisdiction of each provincial and local division of the High Court should NOT be extended by empowering it to entertain all causes, wherever arising, in those matters in which the defendant is an incola of South Africa as a whole.

10.2 In the light of the new constitutional dispensation and the establishment of nine provinces the whole question of the civil jurisdiction of the courts should be included as an urgent project in the South African Law Commission's programme of work.

From 16 August to 9 October 1996 the Commission and its Secretariat visited Australia, New Zealand, Canada, the USA, Scotland and England on a fact-finding mission. In the course thereof it gained much useful information and received invaluable advice. The success of the mission was due entirely to the assistance unstintingly given to the Commission, initially by those with whom the Secretariat was privileged to correspond in the planning of the mission ; and thereafter by those with whom the Commission was fortunate to meet and consult during the mission itself. The Commission is deeply indebted to all of them. The Commission would, in particular, give its warmest thanks to each of the persons hereunder mentioned :-

CHAPTER ONE

1. INTRODUCTION

1.1 In paragraph (1)(c) of its Terms of Reference the Commission is required to make recommendations with reference to the need for improved access to justice for civil litigants in the Supreme Court (now the High Court) through :-

(i) the creation of specialist courts such as the Commercial Court functioning in Johannesburg ; and

(ii) the establishment of a Circuit Court system for the adjudication of civil cases.

1.2 In Chapter Nine (at pages 130 to 136) in this part of its Third and Final Report the Commission unanimously recommends the establishment in South Africa of a specialist Family Court of comprehensive jurisdiction, which will be an independent Court having the status of a Superior Court ; and which will adjudicate family cases also by means of a Circuit Court system.

1.3 From various interested parties the Commission has received many written responses and heard many oral representations supporting the creation of a specialist Family Court for South Africa. These interested parties include Judges, Magistrates, advocates, attorneys, legal academics specialising in the field of family law, and members of the public.

1.4 As part of its investigations into the issue of a possible Family Court for South Africa the Commission has examined, inter alia, the structure and functioning of the following :-

1.4.1 the Family Court of Western Australia ;
1.4.2 the Family Court of New Zealand ;
1.4.3 the Family Court of British Columbia ;
1.4.4 the Domestic Relations Division of the District Court in Denver, Colorado ;
1.4.5 the Family Division of the District Court of Hennepin County, Minnesota ;
1.4.6 the Domestic Relations Division of the Circuit Court of Cook County, Illinois ;
1.4.7 the Family Division of the High Court at the Royal Courts of Justice in London ; and
1.4.8 the Office of the Family Advocate in each of the cities of Cape Town, Johannesburg, Pretoria, Bloemfontein, Durban and Port Elizabeth.

1.5 The Commission has found instructive its study of the structure and functioning of each of the different Family Courts visited by it. However, having due regard to the particular circumstances and the particular needs of our own country, the Commission in making its recommendations is influenced chiefly, and it draws its inspiration mainly, from what it observed in Western Australia and New Zealand respectively. In the opinion of the Commission these are the Family Courts on which a South African Family Court should be fairly closely modelled.

2.1 THE 1983 REPORT OF THE COMMISSION OF INQUIRY INTO THE STRUCTURE AND FUNCTIONING OF THE COURTS

2.2 In paragraph (b) of its terms of Reference the Commission of Inquiry into the Structure and Functioning of the Courts under the chairmanship of Mr Justice G.G. Hoexter ["the earlier Commission"] was required to give attention to the desirability of establishing of Family Court. In PART VII of its Fifth and Final Report presented in December 1983 ["the 1983 Report"] the earlier Commission set forth its recommendations in regard to a Family Court for South Africa. In various written responses received by the current Commission of Inquiry, as well as in various publications by writers on family law, abbreviated reference is made to the earlier Commission as "the Hoexter Commission" and to the 1983 Report as "the Hoexter Report".

2.3 In the 1983 Report the earlier Commission recommended the establishment of a single Family Court for all the inhabitants of the Republic, irrespective of race, having comprehensive jurisdiction in regard to family matters, and functioning at the level of the Regional Court. It recommended that the Children's Court, the Juvenile Court and the Maintenance Court be unified under one roof as a Family Court which would have jurisdiction concurrent with the Supreme Court to hear divorce actions and applications ancillary thereto. It recommended that the minimum legal qualifications for a judicial officer in the Family Court should be the LL.B. degree.

2.4 Annexure " i " [ see pages (i) to (vi) immediately after page 136 hereof ] contains a copy of CHAPTER NINE of the 1983 Report in which the earlier Commission set forth its recommendations regarding the creation of a Family Court. The structure of the Family Court recommended in the 1983 Report is described in paragraphs 9.3 and 9.4 thereof [see pages (i) to (ii) of Annexure " i "]. The recommendations of the 1983 Report as to what matters should be included in and what matters should be excluded from the jurisdiction of the proposed Family Court were set forth in paragraph 9.6 thereof [see pages (ii) to (iii) of Annexure " i "].

2.5 In paragraph 9.4 of the 1983 Report the earlier Commission recommended [see pages (i) to (ii) of Annexure " i "] that the structure of the proposed Family Court should have the following twin components :-

2.5.1 A SOCIAL COMPONENT known as the FAMILY COURT COUNSELLING SERVICE [" FCCS "] :

AND

2.5.2 A COURT COMPONENT being a court of law and a court of record in which a legally qualified officer would preside and in which the rules of procedure and evidence would apply.

2.6 In paragraph 9.4.2 of the 1983 Report the earlier Commission recommended [see pages (i) to (ii) of Annexure " i "] that the FCCS would fulfil the following three functions :-

1. The reception process at the Family Court's reception centre, where family problems will be sifted and classified ; where both legal advice and social counselling will be available; and where the spouses in marriages that can still be saved will be referred to marriage counsellors with a view to reconciliation.
2. The conciliation process, which, in case of an irreparable rift in the marriage, is aimed at helping estranged spouses to communicate directly and to good purpose with each other to make their parting less traumatic for them as well as for their minor children; and to resolve by agreement disputed points (such as custody of and access to minor children and the division of matrimonial assets).
3. The supporting service to the court. Where the court has to adjudicate upon a family matter the counselling service will see to it that any further social welfare investigation or action that may be required by the court will be undertaken either by the counselling services staff or by the staff of some approved social agency.

2.7 One of the issues specifically dealt with in Chapter Three of the 1983 Report was how the function of conciliation in a Family Court is to be adapted to the purely juridical function of a court of law. The earlier Commission found the answer to this question in the approach of the Report of the Royal Commission on the Courts which was tabled in New Zealand in 1978 [" the Beattie Report "] which was the forerunner of the Family Courts established in New Zealand in 1980. In paragraph 3.4 of the 1983 Report the earlier Commission quoted with approval the following passage from the Beattie Report :-

" The Family Court concept demands that the Family Court should be essentially a conciliation service with court appearance as a last resort, rather than a court with a conciliation service. The emphasis is thus placed on mediation rather than adjudication. In this way, the disputing parties are encouraged to play a large part in resolving their differences under the guidance of trained staff rather than resorting to the wounding experience of litigation, unless such a course is inevitable. "

2.8 In paragraph 9.8.2 of the 1983 Report [ see page (iv) of Annexure " i " ] the earlier Commission recommended that simultaneously with the establishment of the Family Court there should be created for the Republic the office of a " CHILDREN'S FRIEND ". Paragraph 9.8.3 of the 1983 Report [ see page (iv) of Annexure " i " ] read as follows :-

" The Children's Friend will be legally qualified and in proceedings of the Family Court he will protect the interests of minor and dependent children. Where the interests of a minor child are at stake and the Children's Friend is of opinion that the proposed protection of the child's interests so require, the Children's Friend will have the power to arrange for legal representation of the child concerned at public expense. "

2.9 In regard to the physical location, lay-out and interior of the Family Court proposed by it the 1983 Report recommended [ see page (v) of Annexure " i " ] :-

" ... that the Family Court should as far as possible be housed separately from other courts, and that special attention should be given to the lay-out and interior appointments and facilities of the Family Court. Well-appointed waiting-rooms, offices in which interviews may be conducted, and child-care facilities are essential at a Family Court. At the reception centre of the Family Court there should be a sympathetic and informed receptionist on duty. "

2.10 One of the guide-lines adopted by the earlier Commission was stated thus in paragraph 8.9.3 of the 1983 Report :-

" Without in any way advocating total rejection of the adversary system in the adjudication of family matters, the Commission is nevertheless of opinion that a further shift in emphasis towards more inquisitorial procedures as regards family matters would benefit the administration of justice. "

2.11 The earlier Commission found [in paragraph 8.9.5 of the 1983 Report] that the adversarial system often resulted in crucial differences within the family, in respect whereof the court ought to give a decision, being artificially withheld from the court's jurisdiction; and further [ in paragraph 8.10.1 of the 1983 Report ] that both the question whether a marriage had irretrievably broken down as well as the investigation into the suitability of the provisions proposed for the care of the minor children of the marriage were considered by the court in the light of the plaintiff's one-sided testimony.

2.12 In the opinion of the earlier Commission [see paragraph 8.10.3 of the 1983 Report] the Divorce Act, 1979 should be so amended :-

1. that if there are minor children of the marriage no summons in a divorce action will be issued until the plaintiff has lodged a certificate signed by an approved social agency from which it appears that the said organisation has carried out an investigation into the welfare of the minor children and the circumstances of both parties ;
2. that the summons in a divorce action indicates the date of the hearing and requires the defendant to attend the hearing whether or not the defendant intends to oppose the relief sought in the summons ;
3. that at the hearing of a divorce action a decree of divorce will be granted only after both parties have testified, unless the defendant does not attend the hearing and the court is satisfied that there are good and sufficient reasons for the absence of the defendant ; and
4. that at the hearing of a divorce action in which minor children are involved a decree of divorce will be granted only if the court is satisfied, having regard to the evidence of both parties and a report submitted by the social agency referred to in (a) above, that the proposed provision for the welfare of the minor children is satisfactory or that it is the best possible provision in the circumstances.

2.13 In paragraph 8.17.9 of the 1983 Report the earlier Commission emphasised:-

" ... that for the proper functioning of the Family Court the calibre of its presiding judicial officers and the continuity of their tenure of office are important. Judicial officers in these courts should be experienced in, and have a predilection for the adjudication of family matters. It is equally important that the highest degree of expertise should be enlisted for the Family Court counselling service. "

2.14 In the 1983 Report the earlier Commission recommended [see page (v) of Annexure " i "] that the Family Court should serve the rural areas of the Republic by means of a circuit system.

2.15 The earlier Commission further recommended [see pages (v) to (vi) of Annexure " i "] that the proposed Family Court should be launched by means of monitored pilot projects to be undertaken in each of the four metropolitan areas [the PWV area ; Cape Town ; Durban ; and Port Elizabeth] having the largest population concentrations.

3.1 THE FAMILY COURT BILL 62 OF 1985

3.1.1 Some of the recommendations of the 1983 Report were embodied in the Family Court Bill 62 of 1985. In paragraph 2 of the Memorandum on the Objects of this Bill, the following was said :-

" The Family Court Bill, 1985, provides for both the institution of the court component and the social component. While a number of clauses of the Bill do indicate that the Family Court is distinct from other courts of law, the special nature and functioning of the Family Court will only become evident from the regulations and rules of court to be promulgated under the enabling provisions of the Bill..."

3.1.2 The Family Court Bill of 1985 was, however, rejected by a Parliamentary sub-committee.

3.2 THE DIVORCE AMENDMENT BILL OF 1985

3.2.1 Some of the recommendations of the 1983 Report for the amendment of the Divorce Act, 1979, were reflected in the Divorce Amendment Bill, 63 of 1985. These were :-

1. that a decree of divorce should be granted only after both parties have testified ;
2. that a summons in a divorce action involving minor children should not be issued unless a social welfare investigation has been made into the circumstances of both parties and the children; and
3. that in considering the arrangements proposed for the minor children of the marriage due regard should be had to the evidence of both parties and a report by a welfare agency.

3.2.2 Nothing came of the Divorce Amendment Bill of 1985.

3.3 THE MEDIATION IN CERTAIN DIVORCE MATTERS ACT, NO 24 OF 1987

3.3.1 In terms of Act No 24 of 1987 the Minister of Justice may appoint one or more FAMILY ADVOCATES at each division of the High Court. Sec 2 of the Act provides that no person shall be appointed as a Family Advocate unless he is qualified to practise as an advocate and the Minister deems him suitable for appointment :-

" by reason of his involvement in or experience of the adjudication or settlement of family matters."

Sec 3 of the Act makes provision for the appointment of "suitably qualified or experienced persons" as FAMILY COUNSELLORS to assist the Family Advocate in the inquiries mentioned in sec 4(1) of the Act.

3.3.2 Sec 4 of Act No 24 of 1987 describes the powers of the Family Advocate in the following terms :-

" (1) The Family Advocate shall -

1. after the institution of a divorce action ; or
2. after an application has been lodged for the variation, rescission or suspension of an order with regard to the custody or guardianship of, or access to, a child, made in terms of the Divorce Act, 1979 (Act No 70 of 1979), if so requested by any party to such proceedings or the court concerned, institute an enquiry to enable him to furnish the court at the trial of such action or the hearing of such application with a report and recommendations on any matter concerning the welfare of each minor or dependent child of the marriage concerning or regarding such matters as is referred to him by the court.

(2) A Family Advocate may -

1. after the institution of a divorce action ; or
2. after an application has been lodged for the variation, rescission or suspension of an order with regard to the custody or guardianship of, or access to, a child, made in terms of the Divorce Act, 1979.

if he deems it in the interest of any minor or dependent child or a marriage concerned, apply to the court concerned for an order authorizing him to institute an enquiry contemplated in subsection (1).

(3) Any Family Advocate may, if he deems it in the interest of any minor or dependent child of a marriage concerned, and shall, if so requested by a court, appear at the trial of any divorce action or the hearing of any application referred to in subsections (1)(b) and (2)(b) and may adduce any available evidence relevant to the action or application and cross-examine witnesses giving evidence thereat."

3.3.3 Although Act 24 of 1987 was passed on 16 June 1987 it came into operation only on 1 October 1990.

3.4 THE REFERENCE TO "MEDIATION" IN THE TITLE TO ACT NO 24 OF 1987 IS MISLEADING

3.4.1 Mowatt [ "The Family Court and Mediation" 1992 TSAR, vol 2, 289] at p. 293 describes mediation in divorce :-

" ...as a process whereby the parties are encouraged, with the assistance of a neutral third party, to reach decisions on disputed issues arising out of the dissolution of marriage. It is a process of legal decision-making and should be distinguished from counselling designed to help parties adjust to the ending of the marriage and its associated emotional consequences. It is of the essence of mediation, as understood in this sense, that the validity of the process stems solely from the agreement between the parties: it is not derived from the authority of the mediator. This does not mean that the mediator may not add his own proposals to those which have been volunteered by the parties. But it is important that the decision should not be imposed upon the parties. It must be genuinely agreeable to both of them."

3.4.2 In his doctoral thesis "An Analysis of the Theory and Principles of Alternative Dispute Resolution" [June 1995] J.A. Faris observes (at page 65) :-

" By no stretch of the imagination can the investigative and representative functions of the family advocate be classified as being akin to any form of the mediation process."

And again at p. 66 :-

" The prescribed process is not consensual, its scope is restricted to pursuing the best interests of minor or dependant children, intervention by the family advocate is only for the purposes of investigation or representation and not primarily to facilitate a negotiated settlement between the parties and the process is conducted in the public and adversarial setting of the courts."

3.5 A GLARING SHORTCOMING IN ACT 24 OF 1987

3.5.1 Adv G.J. van Zyl, Head of the Office of the Family Advocate in Pretoria, has consistently campaigned for a broadening of the functions of the Family Advocate. The nature of the enlarged scope for which he pleads will be considered later. In this paragraph, however, it is necessary to focus upon one striking weakness in the present system.

3.5.2 At a meeting with the Minister of Justice in connection with the National Plan of Action for Children held on 19 November 1996, Adv van Zyl (then the Acting Chief Family Advocate) made a written presentation in the course of which he called attention to the following obvious defect in the provisions of Act 24 of 1987 :-

" As far as divorce work specifically is concerned, we are of course limited to act in cases where parties seek a divorce in terms of the Divorce Act in the Supreme Court. Automatically it excludes us from assisting parties in customary unions and other religious marriages. We also do not have locus standi in the Black Divorce Courts although we have for a long time assisted these courts on an amicus curiae basis. This will have to be rectified by the legislature as it necessitates amendments of the current law. This needs to be done as soon as possible. Obviously the needs of children born from customary marriages are exactly the same as those born from legal marriages, and we need to formally extend our services to them as soon as possible."

3.6 DESPITE THE DEFECTS IN ACT 24 OF 1987 THE OFFICE OF THE FAMILY ADVOCATE NEVERTHELESS REPRESENTS AN IMPORTANT FIRST STEP TOWARDS THE REALISATION OF THE ULTIMATE GOAL OF A FAMILY COURT OF COMPREHENSIVE JURISDICTION

3.6.1 Although the provisions of Act 24 of 1987 are plainly deficient, the Commission nonetheless considers that the creation of the Office of the Family Court must be seen as a significant legislative development in the right direction.

3.6.2 The importance of this legislative step was, in the opinion of the Commission, correctly assessed by the Association of Law Societies of the RSA [ " the ALS"].

3.6.3 In a written response by the ALS to the Commission dated 23 August 1995 [a copy whereof is to be found in Appendix " A " at pages 1 to 20 in VOLUME II to this Report] the following is said :-

" The Office of Family Advocate has paved the way for the establishment of a fully-fledged family court structure in South Africa for at least the following reasons :

1. It went a long way towards overcoming the resistance of many in the legal profession, both attorneys and advocates (and even the Bench), to the idea that the welfare services have an important part to play in the attempted resolution of family law problems, particularly where the interests of children are concerned ;
2. it has resulted in an implied acknowledgment on the part of the judges of the Supreme Court of their inability under the former divorce procedure to discharge, in a meaningful way, their duty in terms of section 6 of the Divorce Act to ensure that the 'provisions made or contemplated with regard to the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances'.

It is only a small but vital aspect of the Hoexter Report that has been acted upon by the Legislature and the Association believes that it is upon this development (coupled with the other proposals of the Hoexter Report subject to the modifications dealt with below) that a family court should be modelled."

3.6.4 Since the coming into operation of Act 24 of 1987 in October 1990 Offices of the Family Advocate have been established in Pretoria, Johannesburg, Cape Town, Durban, Bloemfontein and Port Elizabeth. In Chapter Four of this Report we consider, in relation to each of the abovementioned Offices, how well or indifferently the Family Advocate functions in practice ; how adequately or inadequately the Family Advocate's Office is staffed; and what problems it experiences.

3.7 THE DRAFT DIVORCE AMENDMENT BILL OF 1992

3.7.1 During 1991 there was published for comment [GN513 of 1991] the Draft Divorce Amendment Bill of 1992. It made provision for the establishment of specialist divorce courts, hearing only divorce actions, and functioning within the existing structure of the Supreme Court. Its rules would incorporate the sort of features which enhance the accessibility of the Black Divorce Courts.

3.7.2 In a Memorandum introducing the Bill the following was said in regard to the Black Divorce Courts :-

" These courts enjoy concurrent jurisdiction with the Supreme Court of South Africa...At present these courts are used extensively, which is an indication that they fulfil a real need. In the light of the present constitutional development in South Africa, it is untenable to maintain a separate forum exclusively for a specific population group, and the opinion is held that all divorce actions ought to be tried in the same forum. It is recommended that such a rationalisation process ought to take place in such a way that those features of the present Black Divorce Courts which ensure accessibility, are maintained as far as possible. These features include an elementary and inexpensive procedure, speedy adjudication and the appearance of attorneys in courts. Such an adjustment will by its very nature bring about changes to the divorce procedure in the Supreme Court."

3.7.3 The Draft Divorce Amendment Bill of 1992 was abandoned. However, comments received in response to this Bill led to the promulgation of the Magistrates' Courts Amendment Act, 1993.

3.8 THE MAGISTRATES' COURTS AMENDMENT ACT NO 120 OF 1993

3.8.1 The Magistrates' Court Amendment Act No 120 of 1993 [ "Act 120 of 1993"] was assented to on 9 July 1993. It provides, inter alia :-

" for the establishment of family courts for the adjudication of divorce actions and the appointment of family magistrates for the said courts."

Sec 75 of Act 120 of 1993 provides that it will come into operation on a date to be fixed by the President in the Gazette. No such date has yet been proclaimed.

3.8.2 Act 120 of 1993 seeks to establish a forum for the hearing of divorce actions within the structure of the Magistrates' Courts. By notice in the Gazette the Minister of Justice may establish family divisions of the civil court consisting of one or more districts and he may establish a family court for any family division. For every family division the Minister may appoint one or more family magistrates.

3.8.3 In terms of Act 120 of 1993 the family division will have jurisdiction in respect of any divorce action as defined in sec 1 of the Divorce Act, 1979. The Supreme Court's jurisdiction, however, is not excluded. Act 120 of 1993, if brought into operation, would repeal sec 10 of Act 9 of 1929, in terms whereof the President may institute Black Divorce Courts. However, sec 71 of Act 120 of 1993 provides that notwithstanding the repeal of sec 10 of Act 9 of 1929, any Black Divorce Court already established shall be deemed to be a family court; and any president of a Black Divorce Court shall be deemed to be a family magistrate.

3.8.4 The Mediation in Certain Divorce Matters Act, No 24 of 1987, is not applicable to divorce actions heard in a family court unless by notice in the Gazette the Minister declares its provisions to be so applicable.

3.8.5 In terms of sec 9 ter of Act 120 of 1993 an Appointments Advisory Board will advise the Minster as to the suitability of persons for appointment as family magistrates. The Chairman of the Advisory Board will be the Director-General: Justice; and its members will include the Chief Director of the Justice College, the Chief Family Advocate, an advocate and an attorney, and four Magistrates.

3.8.6 The persons eligible for appointment as family magistrates will be magistrates, or advocates, or attorneys who have satisfied all the requirements for the LL.B. degree.

3.9 ACT 120 OF 1993 HAS BEEN WIDELY CRITICISED

3.9.1 In a written response by the ALS to the Commission dated 23 August 1995 [a copy whereof is to be found in Appendix " A " at pages 1 to 20 in VOLUME II of this Report] the following is said :-

" Whatever the true motivation behind the seemingly hasty desire to create the type of family court envisaged by the Magistrates Courts Amendment Act of 1993, it is clear that what this Act envisages constitutes a dramatic departure from the type of family court proposed by the Hoexter Report in 1983. Thus, what is now envisaged is a type of family court with a very limited jurisdiction to deal with divorce cases."

and later :

" Divorce and family law matters should not be relegated to the attention of civil servants with little or no experience of the kind gained by attorneys of standing..."

3.9.2 In a paper published in May 1997 by Beth Goldblatt entitled "A Feminist Perspective of the Law Reform Process : An Evaluation of Attempts to Establish a Family Court in South Africa" the learned author remarks [ at page 11 ] of the family courts envisaged by Act 120 of 1993 :-

" ...the jurisdiction of these courts is much more limited than was envisaged by the 1983 Hoexter Report. This means that the multiplicity of fora for family matters will remain despite the inconvenience caused to people who, for example, must go to one court for a divorce and another for maintenance to be determined. The duplication of resources in these 'fragmented' courts will also continue. A third problem, is the absence of the Family Advocate in these courts for Children, and the lack of counselling or mediation machinery for family disputes. Fourthly, there is a concern that by placing these courts at Magistrate's, albeit Regional Court level, the quality of justice will be lower than that provided in the Supreme Court."

3.9.3 In a written response to the Commission on the Family Court [a copy whereof is to be found in Appendix " B " at pages 21 to 24 in VOLUME II of this Report] Professor Cheryl Loots, Associate Professor of Law in the University of the Wiwatersrand, writes of Act 120 of 1993, inter alia :-

" The problem with this option is that it would be difficult for the family court to develop its own identity. Most members of the public associate the magistrates' courts with criminal matters and the family court might well be regarded by many as being part of the criminal justice system. This might intimidate litigants or lead them to attribute fault or guilt to the parties. The atmosphere of the magistrates' courts would not be conducive to easing the misery caused by troubled family relationships."

3.9.4 In the article entitled " Family Courts in South Africa and the Implications for Divorce Mediation" 1995 (58) THRHR 276, by Vivienne Goldberg of the University of the Witwatersrand the learned author offers the following comments :-

" The introduction of a family court into the judiciary would indeed be most welcome. The question needs to be asked, however, whether that is what will occur when Act 120 of 1993 comes into operation. It seems to me that the family courts proposed in that Act are not much more than another forum for adjudicating on divorce actions. In fact this could prove to be most detrimental in post-apartheid South Africa - it is probable that affluent Whites will continue to go to the Supreme Court for their divorces, while Blacks will still avail themselves of black divorce courts (although these will now have the name of family courts, and it also appears that the services of the family advocate's office may be extended, by proclamation, to these courts too). With respect, one wonders where the real change is considered to have been made. It seems to be that the considered opinion of the Hoexter Commission, with its emphasis on mediation services as a possible way of sensitively handling dissolution of marriage, has, in the end, largely been ignored."

3.10 A PILOT PROJECT FOR THE FAMILY COURT ENVISAGED IN ACT 120 OF 1993

According to a Department of Justice document dated 23 January 1997 and entitled :

"PILOT PROJECT FOR 'FAMILY COURT' "

a task team comprising officials of the Department of Justice, the Acting Chief Family Advocate and the Chairman of the Family Courts Committee of the Rules Board, has been appointed to take responsibility for the implementation of a pilot project in regard to the family courts mentioned in sec 2 of Act 120 of 1993.

3.11 THE RACIAL EXCLUSIVITY OF THE BLACK DIVORCE COURTS AND THE " DE-RACIALISATION " THEREOF BY THE DIVORCE COURTS AMENDMENT ACT, 1997

3.11.1 Apart from the High Court, which has jurisdiction in divorce cases in respect of all races, the Black Divorce Courts have jurisdiction, in terms of sec 10 of Act 9 of 1929 :-

" To hear and determine suits of nullity, divorce and separation between Blacks domiciled within their respective areas of jurisdiction in respect of marriage and to decide any question arising therefrom..."

3.11.2 The Black Divorce Court consists of so many divisions as the Minister of Justice may from time to time determine. At present the Black Divorce Court has the following three large divisions which are served by a circuit system sitting in the centres respectively indicated hereunder :-

1. The Central Divorce Court:
   Johannesburg; Klerksdorp; Vereeniging; Potchefstroom.
   
2. The North-Eastern Divorce Court :
   Pretoria; Durban; Pietermaritzburg; Vryheid; Pietersburg; Eshowe.
   
3. The Southern Divorce Court:
   Port Elizabeth; Bloemfontein; Welkom; Cape Town; Kimberley; Kroonstad; Queenstown; King William's Town.

3.11.3 The procedure in the Black Divorce Courts is less formal and the legal costs involved therein are much cheaper than in a High Court divorce action. The court provides the services of a clerk who generally does not have a legal qualification, to assist unrepresented litigants who wish to institute or defend matrimonial actions. In the particulars of claim drawn up by the clerk the sum of maintenance claimed in respect of minor children is usually not quantified, the amount being left for determination by the maintenance court.

3.11.4 Act 9 of 1929 [ the principal Act ] was very recently amended [ see Government Gazette No 18451 of 21 November 1997 ] by the Divorce Courts Amendment Act, No 65 of 1997 [ the Divorce Courts Amendment Act, 1997 ]. A copy of the Divorce Courts Amendment Act, 1997, is to be found in Appendix " C1 " at pages 25 to 28 of VOLUME II of this Report.

3.11.5 Sec 1(a) of the Divorce Courts Amendment Act, 1997 extends to all persons the jurisdiction of the divorce courts established under sec 10 of the principal Act.

3.11.6 Sec 1(b) of the Divorce Courts Amendment Act, 1997, provides that a division of the divorce court established under sec 10 of the principal Act shall consist of one or more presiding officers, appointed by the Minister of Justice, who shall be deemed to be magistrates of a regional division as contemplated in Act 32 of 1944.

3.11.7 Sec 1(g) of the Divorce Courts Amendment Act, 1997, provides that a Family Advocate or Family Counsellor appointed under Act 24 of 1987 shall be deemed to have been appointed also in respect of any divorce court having jurisdiction in the area for which he or she has been so appointed.

3.11.8 Sec 3 of the Divorce Courts Amendment Act, 1997, extends the application of the principal Act to the entire national territory of the Republic.

3.11.9 Sec 5 of the Divorce Courts Amendment Act, 1997, provides that its terms shall come into operation on a date fixed by the President by proclamation in the Gazette.

3.11.10 In a written notification to the President dated 28 November 1997 [ the notification ] the Commission addressed an urgent request to the President not to put the Divorce Courts Amendment Act, 1997, into operation until he has considered the Commission's recommendations for the establishment of a Family Court of comprehensive jurisdiction set forth in this Report. The reasons for the said request appear from the terms of the notification, a copy whereof is to be found in Appendix " C2 " at pages 29 to 30 in VOLUME II of this Report.

4.1 During the period June to August 1997 the Commission visited each of the Offices of the Family Advocate respectively based in Johannesburg, Pretoria, Cape Town, Durban, Bloemfontein and Port Elizabeth. In the course of such visits the Commission had the benefit of discussions at each Office with the Family Advocates, Family Counsellors, and other members of staff there serving ; and the Commission was afforded an opportunity of inspecting the premises occupied by each Office. At the conclusion of each such visit the Commission invited the Office concerned to submit to the Commission's Secretariat a written report describing the day-to-day functioning of the Office and listing what practical problems were being encountered by it.

The Commission wishes to record its warm appreciation of the time and trouble taken by each of the Family Advocates concerned in affording the Commission every assistance in its investigations.

4.2 THE CHIEF FAMILY ADVOCATE

4.2.1 On Monday 18 August 1997 the Chairman and the Secretariat further had the advantage of a consultation with Adv B. Hechter who on 1 July assumed the post of the Chief Family Advocate. Adv Hechter matriculated at the Afrikaans Hoër Meisieskool in Pretoria in 1973. Having gained the degrees of B.A. and LL.B. at the University of Pretoria she joined the Department of Justice in 1979. After working as a prosecutor for eighteen months she became a member of the Pretoria Bar in August 1980. She practised as an advocate until November 1990 when she was appointed as the Second Family Advocate at the Pretoria Office. She became the head of the Johannesburg Office of the Family Advocate in May 1991 ; and on 1 July 1997 she was appointed the country's Chief Family Advocate.

4.2.2 Having received the necessary training through the South African Association of Mediators [ SAAM ] Adv Hechter is a qualified mediator. Under the auspices of the English Association of Family Mediators she completed an advanced mediation course presented by Ms Lisa Parkinson and Mr Henry Brown. In 1995 Adv Hechter was appointed to the Executive Committee of SAAM.

4.2.3 A founder member of the Association of Family Lawyers, Adv Hechter has also acted as an advisory consultant to the Legal Resources Centre (National Office). She is a member of the Board of Trustees of STREETWISE [ an organisation which seeks to rehabilitate street-children ]. She has been actively involved in the training of black Social Workers at Baragwanath Hospital ; and latterly she has played a leading role in launching a pilot project known as the West Rand Family Mediation Centre, the purpose of which is to provide members of impoverished communities with mediation services in disputes involving divorce, custody of children, and maintenance. The Centre will provide and integrated service which will deal with all issues in one place. The project combines the resources and skills of a wide range of organisations.

4.2.4 Within the recent past Adv Hechter has attended the following international conferences : (1) The Hague Convention on the Civil Aspects of International Child Abduction held during March 1997 ; (2) The Second World Congress on Family law and the Rights of Children and Youth held in San Francisco in June 1997 ; and (3) The Ninth World Conference of the International Society of Family Law held in Durban during July 1997. Adv Hechter has delivered various papers (locally and overseas) on subjects such as Family Law and mediation at seminars ; and she has often addressed senior student associations.

4.2.5 Adv Hechter explained to the Commission that the chief problem experienced in every Office of the Family Advocate was the chronic shortage of Family Counsellors, coupled with lack of experience and the low level of training of such Family Counsellors as the Department of Social Services was able to provide to the Office of the Family Advocate. The fact that the Family Counsellors were merely on temporary loan to the Office of the Family Advocate led to inefficiency and serious administrative problems.

4.2.6 Adv Hechter pointed out that despite the inclusion of the word "Mediation" in the title to Act No 24 of 1987, in actual fact very little mediation could be successfully undertaken by the Office of the Family Advocate. According to Adv Hechter the reasons were twofold : many Family Advocates lacked proper training in mediation ; and in any case the workload of the Office was so heavy as to preclude proper mediation.

4.2.7 A matter stressed by Adv Hechter during her interview with the Commission was the need for a multi-cultural approach to mediation in South Africa. She illustrated her point with reference to the African community, within which the family unit is generally more extensive than the nuclear family in other communities ; and in family mediation due provision has to be made for such extended family.

4.3 THE OFFICE OF THE FAMILY ADVOCATE IN JOHANNESBURG

4.3.1 The Acting Head of the Office in Johannesburg is Adv P.I. Seabi. She holds the degrees of B.Proc and LL.B. As a student she served in a Legal Aid Clinic, assisting mainly with matrimonial work. After a brief stint as a candidate attorney she did duty as a prosecutor from 1 October 1990 to 30 November 1993. As her chief interest lay in family law she worked mainly in the Maintenance Court. Since 1 December to date Adv Seabi has been on the staff of the Family Advocate in Johannesburg. Studying by correspondence she is presently working towards an LL.M. degree in family law. Adv Seabi is a qualified mediator and a member of the SA Association of Mediators. Since 1995 she has been a voluntary worker at the Child Welfare Society in Atteridgeville.

4.3.2 The Johannesburg Office has four Family Advocates and two Family Counsellors. One Family Advocate's post and two Family Counsellors' posts are vacant. The staff complement further consists of four administrative clerks, two typists and a messenger. The office is grossly understaffed. It has a backlog of 128 files and 340 outstanding inquiries.

4.3.3 The Office's day-to-day work involves the following tasks :-

1. monitoring of all divorce summonses involving minor children ;
2. monitoring of all applications involving minor children ;
3. endorsing all written settlement agreements involving minor children ;
4. giving legal advice to members of the public in the course of personal interviews or over the telephone ;
5. conducting inquiries regarding issues of :-

(i) custody, access, guardianship, paternity and maintenance (where a court order has been made) ;
(ii) custody, access and guardianship involving children born out of wedlock (where a court order has been made) ; and
(iii) custodial and guardianship applications by grandparents or interested third parties (where a court order has been made) ;

6. mediation sessions ;
7. undertaking inquiries, amicus curiae, for the Central [Black] Divorce Court in connection with custody, access and guardianship ;
8. appearing in court ;
9. making home visits ;
10. monitoring access ; and
11. approaching High Court Judges in chambers for authorisation to undertake an inquiry mero motu.

4.3.4 From the written report submitted by the Johannesburg Office to the Commission it appears that the major difficulties experienced are the following:-

" 5. Our main problem is the lack of counsellors. Two social workers to service the Johannesburg and Central [Black] Divorce Court is simply unrealistic. The situation is exacerbated by the fact that such social workers are in the employ of the Department of Welfare and, accordingly can be, and are, called back to their departments at short notice, without adequately experienced and trained social workers being sent in their place. It is strongly recommended that the Family Counsellors should in fact be employed by the Department of Justice. This would further enable this office to have a greater input into the selection process. The shortage of Family Counsellors has direct bearing on our present backlog of our enquiries and our difficulty in dealing with urgent referrals from court timeously.

6. We require a minimum of five Family Counsellors, that is, at least one Family Counsellor for every Family Advocate, to effectively run this office. In fact, the optimum would be six Family Counsellors, to provide for the Family Counsellors' role in follow-up investigation outside the office.

7. Due to the metropolitan nature of the area we serve, language problems are experienced. We presently have no interpreters, and this is becoming a serious problem in the light of the flood of requests we are receiving from the Central Divorce Court. It is imperative that minor children be interviewed in their home language.

8. ... there is a dire need to make the office ...accessible to the general public. Parties are complaining that it is costly for them to travel to Johannesburg central, and complaints are also made as to their, and their children's safety. It is suggested that satellite offices be opened.

9. Family Advocate Offices should be more gender representative regarding the staff. At present our office has one male Family Advocate, and no male Family Counsellors. It would be of utmost importance for administrative staff if they were afforded the opportunity to attend a course in learning a black language, particularly in the absence of an interpreter. "

4.3.5 Although there is a gender imbalance in the Johannesburg Office its Family Advocates and Family Counsellors are representative of all population groups. Of the four Family Advocates two are Black, one is Indian and one is White. One Family Counsellor is Indian and the other Black.

4.4 THE OFFICE OF THE FAMILY ADVOCATE IN PRETORIA

4.4.1 The Head of the Pretoria Office is Adv G.J. van Zyl. While the post of Chief Family Advocate remained vacant for a period of almost two years he was the Acting Chief Family Advocate. In this last-mentioned capacity Adv van Zyl made oral submissions to the Commission at its public hearings during April 1996 [see pages 111 to 120 in VOLUME III of this Report].

4.4.2 Adv van Zyl has had an impressive academic career and extensive exposure to the practical application of family law. He holds the degrees of Dip Iuris (cum laude); B. Proc (cum laude) and LL.B. While attending the Justice College he took the prize as the best student in 1979, 1980 and 1981. At the University of Pretoria he received academic colours in 1984. Both in 1983 and in 1984 he received achievement awards from Adams and Adams. Having served articles with the State Attorney in Pretoria he was admitted as an attorney and notary in 1989. He was a prosecutor for three years and a Magistrate (civil, criminal and Children's Court) for three years.

In March 1992 Adv van Zyl joined the Family Advocate Division as a Family Advocate. Over the years he has attended various departmental courses including one on Family Magistrates. With a view to mediation he has received specific skills training from SAAM and other NGO's. He has addressed seminars for social workers and in the field of matrimonial law he has assisted in the training of students at the University of Pretoria and the Association of Law Societies. He has written articles on family law and human rights and he is the co-author of a chapter in " The Law of Children and Persons " which Butterworths is about to publish.

4.4.3 The Pretoria Office has a Family Advocate who is the head of the Office (white male) ; four other Family Advocates (three white females and one black female) one post being vacant ; three Family Counsellors (two white females and one black female) two posts being vacant ; four administrative officials ; two typists ; one secretary and one messenger.

4.4.4 Adv van Zyl informed the Commission that the social welfare component of the Family Advocate's Division consists of eighteen full-time Family Counsellors provided by the Provincial Departments of Welfare. The Division also relies heavily on external establishments and social workers in private practice who render their services to the Division on a voluntary basis.

4.4.5 These outside social workers mainly assist with evaluations done elsewhere than in the main centres. The bulk of the inquiries, however, are dealt with at the Office of the Family Advocate with the assistance of full-time in-house social workers.

4.4.6 During the past twelve months or more, explains Adv van Zyl, the Family Advocate has experienced a steady decline in the availability of social welfare support systems, both within the Civil Service and from outside sources. Many officials have left the Civil Service and private welfare institutions have suffered financial constraints.

4.4.7 The consequent deterioration in the situation has throughout been brought to the attention of Head Office by means of monthly reports and memoranda ; and by means of letters addressed to the Department of Welfare. However no real improvement in the situation has resulted.

4.4.8 At the moment, so Adv van Zyl reports, the Family Advocate's Division is struggling against immense odds to establish a service in the former TBVC territories. The main problem remains the lack of social welfare officers to perform the functions prescribed by Act 24 of 1987.

4.4.9 The social workers made available to the Family Advocate's Division are not seconded to the Department of Justice, which consequently exercises no control in regard to their appointment or in connection with the number of posts available. Adv van Zyl suggests that the social welfare component be integrated with the Department of Justice so that posts on the staff establishment may be filled by the Department of Justice.

4.4.10 In the view of Adv van Zyl it is of paramount importance that the Minister of Justice should come out publicly in support of the Family Advocate's Division to counter the criticism sometimes levelled at the Office that it provides a service only to a privileged White group. Even under the constraints of the existing legislation there are Offices within the Division in which approximately 50% of the cases dealt with involve Blacks. In the Cape area the percentage for Coloureds is 80%; and in Durban a large portion of the cases dealt with involve the Indian segment of the population.

4.4.11 Leaving aside the social welfare component (which is financed by the Department of Welfare) and the private social welfare agencies, the Family Advocate Division runs on a shoe-string budget of some R8 million. This is a mere drop in the ocean of the Department's total expenditure.

4.4.12 Adv van Zyl stresses, on the one hand, the necessity for the Family Advocate to render services to all children of all races, but, on the other hand, the intractable problem presented in remote rural areas by the almost total lack of a social welfare infrastructure. He says:-

" Die oplossing lê klaarblyklik daarin dat nog meer gedoen moet word om sigbaar en effektief uit te brei na veral die swart gesinne in die plattelandse gebiede wat tot nou toe in 'n groot mate onbereikbaar was of buite ons wetlike opdrag geval het. Dit is ongelukkig in veral hierdie gebiede waar daar 'n opmerklike gebrek aan 'n beskikbare infrastruktuur van maatskaplike werkers en gemeenskaps-gebaseerde organisasies bestaan ... "

4.4.13 A further strain on the already over-extended resources of the Family Advocate Division has been imposed by the recent legislative requirement that it should serve also the former TBVC states. In this connection Adv van Zyl reports as follows :-

" Die Gesinsadvokaatfunksie is op 1 April 1997 kragtens die Rasionaliseringswet op Justisiewette, nr 18 van 1996, uitgebrei na die voormalige TBVC-gebiede. My aanvanklike indruk was dat ons weens die relatiewe lae volume van sake, sou kon klaarkom met deeltydse Gesinsadvokate en het reeds reëlings in plek om van advokate van die Prokureurs-generaal gebruik te maak in Umtata, Bisho en Thohoyandou, en van die Staatsprokureur in Mmabatho. Intussen het dit geblyk dat ek moontlik die werklading onderskat het sover dit Umtata en Mmabatho aanbetref, en het ek reeds wat Mmabatho aanbetref, 'n memorandum aan Hoofkantoor deurgestuur waarin ek vra vir 'n permanente Gesinsadvokaat. "

4.4.14 In a letter addressed by Adv van Zyl to the Commission on 2 June 1997 he concludes with the following significant paragraph :-

" In watter vorm die Gesinshof ookal eventueel tot stand kom, ek meen dat die Gesinsadvokaat 'n rol daarin behoort te speel. Na my mening sou die totstandkoming van 'n Gesinshof waarskynlik ook voorafgegaan moet word deur nuwe wetgewing, en indien dit die geval is, is dit moontlik die ideale tyd om ook opnuut te kyk na die Wet op Bemiddeling in Sekere Egskeidingsaangeleenthede, no 24 van 1987, deur dit meer in ooreenstemming te bring met die behoeftes van die Gesinshof. Na my mening behoort die Wet ideaal gesproke geskrap te word en vervang te word met 'n meer duidelike Wet waarin die afdeling se funksies gepas uitgebrei word om meer omvattende hulp aan kinders te verleen buiten bloot dié wat in egskeidingsaksies betrokke is. "

4.5 THE OFFICE OF THE FAMILY ADVOCATE IN CAPE TOWN

4.5.1 The Head of the Cape Town Office is Adv Hester Fouchè.

4.5.2 Adv Fouchè gained her LL.B. degree at the University of Stellenbosch in 1966. She started her legal career as a prosecutor in the Johannesburg Magistrates's Court. Thereafter as a member of the staff of the Attorney-General she worked as a State Advocate first in the Transvaal and later in Kimberley. From 1975 to 1991 she practised as an advocate at the Kimberley Bar.

4.5.3 On 1 October 1991 Adv Fouchè inaugurated the Cape Town Office of the Family Advocate. At an early stage she perceived the necessity of holding informal talks with those Cape Judges who had a real interest in family law in order to promote the work of her Office. A 'liaison' Judge was appointed. Adv Fouchè also established links with the Cape of Good Hope Law Society and she listened with a receptive ear to the Law Society's criticisms and constructive suggestions.

4.5.4 At the same time Adv Fouchè introduced herself to both subsidised Welfare Agencies and the Department of Health and Welfare. In regard to the critically important matter of the supply of social welfare workers to the Office of the Family Advocate she made the disturbing discovery :-

" that there was no formal work agreement between the Department of Justice and the Department of Welfare. The only indication that the Department of Welfare was committed to this office was contained in a circular. As far as I know that is still the position. A copy of the circular is attached ... "

[A copy of the circular to which Adv Fouchè refers is to be found in Appendix " D " at pages 31 to 36 in VOLUME II of this Report.]

4.5.5 The Cape Town Office has :-

1. a Senior Family Advocate and Head of the Office ;
2. four Family Advocates (one post being currently vacant) ;
3. four adm