OPINION
TO:
Probono.Org
IN RE:
Mediation where there is a Domestic Violence Interdict in place
__________________________________________________________________
INTRODUCTION
1. ProBono.Org has requested me to draft an opinion in respect of the following
questions:
1.1 Can a mediation occur where there is a domestic violence order against
one of the party’s and the parties agree to mediate despite the order?
1.2 What legal implications are associated therewith both for the mediator and
the parties involved?
1.3 Can the parties agree to suspend the order pending the outcome of
mediation?
1.4 If not, what legal route should the parties pursue to ensure that mediation
occurs without rendering one party in breach of the order?
2. This opinion is given in context of Probono.Org frequently being approached
by individuals who require assistance in establishing contact with their
children and or applying for care of their children where there is a Domestic
Violence Order in place.
CAN MEDIATION OCCUR WHERE THERE IS A DOMESTICE VIOLENCE ORDER
ON ONE OF THE PARTIES AND THE PARTIES AGREE TO MEDIATE
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1. The most important consideration is the interests of the child. Every child has
the right to have his or her best interests considered to be of paramount
importance in every matter concerning him or her.1
2. In terms of Section 10 of the Children Act:“Every child that is of such an age, maturity and stage of development as to
be able to participate in any matter concerning that shild has the right to
participate in an appropriate way and views expressed by the child must be
given due consideration.?
3. From the outset, it should be taken into account that each case should be
determined according to its own facts and merits, whether there is an interim
or final protection order in place, to whom the violence was against and
whether the respondent was present at the granting of the final domestic
violence order and if not, why not.
4. The Domestic Violence Act 116 of 1998 defines “domestic violence” in section
1 (viii) as:
a. Physical abuse;
b. Sexual abuse;
c. Emotional, verbal and psychological abuse;
d. Economic abuse;
e. Intimidation;
f. Harassment;
g. Stalking;
h. Damage to property;
i.
Entry into the complainant’s residence without consent, where the
parties do not share the same residence; or
j.
Any other controlling or abusive behavior towards a complainant,
Where such conduct harms, or may cause imminent harm to, the
safety, health or wellbeing of the complainant.”
1
Per Goldstone J in Mininster for Welfare and Population Development v Fritzpatrick 2000 (3)SA 422 (CC) par
18.
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5. In order for the court to grant an interim protection order, the complainant
needs to have prima facie evidence of an act of alleged domestic violence2. In
order for the interim protection order to be confirmed, the order must be
served on the respondent and the respondent must either not arrive at court 3
alternatively should the respondent appear at court and oppose the interim
protection order, the court must decide on a balance of probabilities 4 whether
such domestic violence occurred.
6. The type of alleged domestic violence, whether it was a once off incident or a
situation in which the domestic violence was a continuous battering which
took place during or even after an intimate relationship.
THE PURPOSE OF MEDIATION
7. In terms of section 6(4) of the Children’s Act in any matter concerning a child
an approach which is conducive to conciliation and problem-solving should be
followed and a confrontational approach should be avoided.
8. There are certain instances where mediation is mandatory in terms of the
Children’s Act, namely section 21 of the Act which deals with parental
responsibilities and rights of unmarried fathers and the second in section 33
which deals with parenting plans.
9. It is suggested by De Jong, “Opportunities for Mediation in the New Childrens
Act” 2008 THRHR p 633 that if mediators attempt to mediate child-centered
disputes in the midst of abuse or family violence they need to be properly
trained and sufficiently knowledgeable to deal with these precarious
provisions.
10. In terms of section 69 of the Childrens Act if a matter is referred to a
Children’s court is contested the court may order a pre-hearing conference to
be held and for the parties to mediate. The Act specifically excludes such a
2
Section 5(2) Act 116 of 1998
Section (6)(1) Act 116 of 1998
4
Section 6(4) of Act 116 of 1998
3
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pre-hearing conference where there is alleged abuse or sexual abuse of the
child.5
11. In terms of section 71(2) lay-forums may not be held in the event of a matter
involving the alleged abuse of a child.
12. De Jong, once again suggests that in the case of family violence that
mediators should be properly trained.
“When a battered woman decides to divorce her abuser the violent nature of
the relationship between them can seriously impede her bargaining power
and reinforce economic inequalities between the parties.”6….Because of her
fear of the abuser and her understandable reluctance to face him, she may be
more likely to enter into agreements, which are not in her interests or those of
the children. For this reason, in other jurisdictions divorce mediation is
regarded as inappropriate where the spouses have been involved in abusive
relationships.”
WHAT ARE THE MAGISTRATES POWERS IN TERMS OF THE DOMESTIC
VIOLENCE ACT
13. Section 7 of the Act defines the powers of the court in respect of the
protection order. An important power which the court has is prohibiting the
respondent from enlisting the help of another person to commit such act7.
14. If a person is found guilty of contravening section 7 of the Act it will be an
offence in terms of section 17 of the Act.
15. In a scenario where there is a protection order in place for emotional abuse
and the respondent obtains a mediator to try mediate in respect of access to
children, the mediator could be guilty of an offence in breaching the protection
order.
5
Section 69(2) of the Act
Bonthuys, Elsje “Spoiling the Child: Domestic Violence and the interests of children.” SAJHR vol 15 1999 p.
311
7
Section 7(1)(b)
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4
16. Whilst the protection order is in place, I do not think that mediation would be
appropriate especially in cases of extreme abuse. It would be best for an
application to be made to the High Court as the “upper guardian” of all minor
children to determine such access.
17. In terms of section 10 of the Act a complainant or respondent may apply to
have the protection order varied or set aside. In terms of section 10 (2) a good
cause must be shown for the variation or setting side of the protection order
provided that the court shall not grant such an application to the complainant
unless it is satisfied that the application is made freely and voluntarily.
18. Where a protection order has been made and on a balance of probabilities it
is shown that the Complainant is entitled to such an order, I doubt that a
magistrate will vary the order that such parties mediate where there has been
abuse.
19. The magistrate is bound by the Magistrate’s court Act as well as the Domestic
Violence Act and may in terms of the act impose any additional conditions
which it deems reasonably necessary to protect and provide for the safety of
the complainant. I do not think that the magistrate where he has found on a
balance of probabilities that there has been an act of domestic violence
committed that he will vary the order that the parties attend mediation once a
week where there is clearly no equal bargaining power.
CONCLUSION
20. No mediation should take place where there is a domestic violence interdict is
in place. The protection order should be rescinded, in appropriate cases and
done freely and voluntarily by the complainant.
21. In cases of serious physical and emotional abuse mediation would not be best
suited as the bargaining power between the parties is unequal. The High
Court should rather be approached by way of application to determine the
access of the respondent to the children.
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22. The implication for the mediator and respondent where there is a protection
order in place is that they would be committing an offence in terms of section
17 of the Act, and a warrant of arrest can be issued against the respondent for
being in violation of the protection order.
DATED AT JOHANNESBURG ON 23 FEBRUARY 2011.
______________
A SCOTT
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