In the case of Centre for Child Law v TS and others

[2023] JOL 59835 (CC)

The High Court’s declaration of constitutional invalidity in respect of section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 was referred to the Constitutional Court for confirmation.

The section was declared unconstitutional in that it placed an obstacle in the way of never-married parents and their children, to access the services of the Office of the Family Advocate in the same way that married parents going through a divorce, and other parents who were married to each other, were able to access those services when there was a dispute regarding the care and contact of their children.

Divorced or divorcing parents were required to only fill in a form which in turn prompted the Office of the Family Advocate to initiate an enquiry in terms of section 4. Never-married parents on the other hand, had to approach a court and bring a two-pronged application where, in Part A, they sought an order for the Office of the Family Advocate to investigate and file a report on the best interests of the child; and Part B being an application for whatever substantive relief they sought. The applicant, the Centre for Child Law (CCL), and the first respondent, argued that the additional legal step for such parents led to additional costs and further delays in the proceedings, even in unopposed referrals.

The CCL contended that at least three constitutional rights were violated by the impugned provision, namely the section 9 right to equality, the section 10 right to human dignity and the right of minor children to have their best interests considered of paramount importance as envisaged in section 28 of the Constitution.

Held that section 9(1) of the Constitution provides that “everyone is equal before the law and has the right to equal protection and benefit of the law”. Section 9(3) prohibits direct and indirect discrimination by the State against anyone on any of the grounds listed therein. The first question was whether there was differentiation between people or categories of people. The court referred to the test for assessing whether differentiation amounts to discrimination and whether the discrimination is unfair. As the provision treated divorced or divorcing parents differently from never-married and married parents who were separating but not divorcing, differentiation was established. The next question was whether the differentiation bore a rational connection to a legitimate government purpose. The third respondent (the Minister) conceded that there was no purpose behind the differentiation. Section 4 clearly discriminated on the basis of marital status, albeit indirectly. The next question was whether the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, in view of all relevant factors, including those mentioned in section 36(1) of the Constitution. The limitation was not justifiable in terms of section 36.

The High Court order was confirmed and the declaration of invalidity was suspended for 24 months to enable Parliament to cure the defect