One of the cornerstones upon which South African democracy is hinged upon is the notion of equality. Section 9 of the Constitution of the Republic of South Africa, Act 108 of 1996 provides that no individual may be unfairly discriminated against on any of the listed grounds therein, including marital status.
At times the differentiation of individuals is necessary when fairly implemented to serve a legitimate purpose; it is unfair discrimination that is outlawed in terms of the law. For example, it is generally accepted to differentiate between males and females in the allocation of restrooms in public spaces, as this serves a legitimate purpose. However, denying a job opportunity to a person merely because of their race, despite the person matching the required job requirements amounts to unfair discrimination, which is outlawed by the Constitution.
Section 4 of the Mediation in Certain Divorce Matters Act of 1987 provides for married parents of minor or dependent children in engaging the services of the Office of the Family Advocate to investigate on the best interests of the children concerned upon divorce, but does not provide the same upon the separation of unmarried parents. In practice, unmarried parents are required to make a court application for an order to have the Family Advocate investigate the best interests of the minor or dependent children. To some extent, this places a heavier burden, financially and otherwise, on unmarried parents of minor and dependent children.
The South Gauteng High Court found that the immediately above did not serve a legitimate purpose, in the case of ST v BN And Another [2022] ZAGPJHC 374 (2 February 2022). The parties had met and entered into a romantic relationship. They had two children abroad but did not enter into a civil marriage. Upon the termination of the relationship, the applicant returned to South Africa together with the children, whereupon she entered into a marriage with another man. Together with her husband, the applicant decided to relocate to Australia with the minor children, a decision which the respondent opposed.
The main application of the Applicant dealt with the requirement of unmarried parents of a minor or dependent child to lodge a court application for an order for referral to the Family Advocate. The applicant argued that provisions of Section 4 of the Mediation in Certain Divorce Matters Act of 1987 placed obstacles on the exercise of rights by unmarried parents towards their minor or dependent children. It was argued further that this somewhat reduces their status to an inferior position that seemingly has less importance of service by the justice system, Family Advocate, and the court. Court applications come at a cost, and delays, there is no legitimate reason to differentiate between married and unmarried parents of minor and dependent children in terms of their engagement with the Family Advocate.
These submissions were very persuasive to the Court that it subsequently declared the provisions as unconstitutional and invalid, awaiting confirmation by the Constitutional Court.
Our view is that this judgment is an important one, one which has enhanced the position of unmarried parents of minor children. Many unmarried parents of minor and dependent children find themselves in much the same situation as the one presented above, which presents many difficulties. In the case of Paixao v Road Accident Fund 2012 (6) SA 377 (SCA), it was noted that cohabitation outside the institution of marriage is now widely accepted and practiced in many communities in the world, including South Africa. The Constitutional Court noted in the case of Jane Bwanya v The Master of the High Court, Cape Town that what may be referred to as ‘family’ may indeed come in various manifestations and not only in civil marriages per se. It was, therefore, necessary and overdue that the law takes cognisance of these developments in our society.
This judgment is in line with the constitutional obligation of equality and to the extent that the differentiation between unmarried and married parents of minor children in the Act served no legitimate purpose. We assist with mediation in family law and a wide array of other legal fields.
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