On 2 February 2022, the Gauteng Division of the High Court, Johannesburg, handed down a judgment declaring section 4 of the Mediation in Certain Divorce Matters Act, 24 of 1987 (“the Act”) to be inconsistent with the Constitution of the Republic of South Africa, 108 of 1996 (“the Constitution”), and invalid. The declaration of invalidity was suspended for a period of 24 months from the date of confirmation by the Constitutional Court to enable Parliament to take steps to cure the constitutional defects identified in the judgment.
Bezuidenhout AJ, in the case of ST v BN, and in terms of section 172(1)(a) of the Constitution, mero motu raised the issue that section 4 of the Act requires parents, who have never been civilly married, to apply to Court for an order that the Family Advocate investigate a family dispute, while in almost all litigated matters involving children, the Court would ordinarily require a report from the Family Advocate in order to finally rule in the matter. Parties to litigation who are married or in the process or divorcing, or who had previously been divorced, need only complete and sign annexure “B” of the Act to request an investigation by the Family Advocate.
The Court requested a number of amicus curiae to make submissions, to which request the Centre for Child Law, the Minister of Justice and Constitutional Development (“the Minister”), also on behalf of the office of the Family Advocate, responded and were joined to the proceedings.
The Court was of the view that the Act made an arbitrary distinction between the children of married, formerly married or divorced parents, and parents of children who have never been civilly married. The reasons for deciding not to enter into a civil marriage could be economic, cultural, religious, social or simply a personal choice.
The Court held that the differentiation of unmarried parents and their children by the Act used to bear a rational connection to a legitimate government purpose at the time when the office of the Family Advocate was established by the promulgation of the Act, but that the institution of marriage in South Africa was no longer a prerequisite for children to be regarded as “legitimate.”
The Court further held that there can be no legitimate government purpose for discrimination based on marital status when it comes to the treatment of children, and that such discrimination cannot be justified, cannot be in the best interest of children and is therefore inconsistent with the Constitution.
The Minister of Justice and Constitutional Development (“the Minister”) and the Office of the Family Advocate (“the Family Advocate”) made submissions in support of the declaration of invalidity of section 4 of the Act. It was submitted on behalf of the Family Advocate that the Act discriminates against unmarried parents, including unmarried fathers, and that its office recognized the fact that unmarried parents have no choice but to obtain a court order so that the Family Advocate is directed to investigate what the best interests of their minor children would be, before a court could make a final decision in litigation involving the unmarried parents. The Family Advocate submitted that the Act “is outdated, pre-constitutional legislation and that its relevance is questionable for a number of reasons,” which included the fact that it discriminated unfairly against persons on the grounds of marital status.
It was submitted on behalf of the Minister that the absence of a reason or a legitimate government purpose for the differentiation is absent, and that such discrimination could not be justified, and would be found to be inconsistent with the Constitution. The Minister further submitted that he would not oppose a finding by the Court that sections 4(1)(a) and (b) of the Act were inconsistent with the Constitution.
The Minister and Office of the Family Advocate expressed concern that the declaration of invalidity of section 4 of the Act would increase the workload of the office of the Family Advocate, which might not be able to sustain the increased number of referrals due to its already constrained resources. However, the Court was of the view that a process of direct referral, without court intervention, would not necessarily increase the workload of the office of the Family Advocate, but would only allow for referrals to happen quicker. 
