Peter van Niekerk

Peter is a senior partner and head of Eversheds Sutherland’s Litigation and Dispute Resolution department, where he leads a team of eight attorneys. With over 43 years of legal experience, he has also served as managing partner from 2012 to 2022. Peter's practice spans multiple disciplines including commercial litigation, insurance, construction, pension disputes, and family law. Notably, he led the legal team in a case that secured over R1 billion for two pension funds, one of the largest settlements in South African legal history.

Peter has acted as an Acting Judge and Assessor in the High Court Gauteng Division and is accredited as a mediator with Conflict Dynamics.

Recently there have been significant developments in the law relating to the role and powers of parenting coordinators (“PCs”), and this is relevant to mediators who act as PCs and who mediate in the field of Family Law.

The role of a PC is in many instances similar to that of a mediator. The role of a PC was described by Jacqueline Heaton in her article titled ‘The Law of Divorce and Dissolution of Life Partnerships in South Africa’ as “a child favoured ADR process in which a mental health professional or legal professional with mediation training and experience assists high-conflict parties in implementing parenting plans and resolving pre- and post-divorce parenting disputes in an immediate non-adversarial, court-sanctioned, private forum.”

Similarly, in the case of M v Bruwer and Another[1], the Judge held that:

Navigating Legal Boundaries - limits to the authority of PCs and Mediators (“facilitators”)

Problems arise when a Parenting Plan gives the facilitator vast powers, including the right to make binding directives on the parties in the event of a deadlock. Whilst most mediators do not, as a matter of course, have powers to make binding directives, this is however not uncommon.

The purpose of this article is to caution facilitators that, regardless of the virtually limitless powers a Parenting Plan may give them, they must be careful to avoid an unlawful delegation of judicial authority.

In the cases of TC v SC[2] and M v Bruwer and Another, the Court highlighted certain limitations on the authority of facilitators which we set out below.

1. Agreement on a Parenting Plan

In TC v SC, the Court held that an agreed parenting plan was essential to establish the framework outlining the facilitators’ appropriate role and scope of authority. Before a facilitator can intervene in a family dispute, the parents must have already agreed on a parenting plan, and this agreement must be formalised by a court order. The facilitator's role is confined to addressing issues related to implementing or ensuring compliance with this existing court order.

2. Substantive Matters Reserved for the Courts

The Children’s Act[3] stipulates that certain matters fall exclusively under the jurisdiction of the Court. These include decisions regarding:

•    Care and contact arrangements of the children;

•    Guardianship; and

•    The suspension, extension, termination or restriction of parenting responsibilities and rights.

Facilitators are restricted from making decisions on substantive matters, such as changes to custody or primary residence and varying maintenance orders, both of which require judicial oversight. Their authority is limited to making ancillary rulings necessary to implement the existing court order without making permanent changes to rights and obligations. Any conferral of power on a facilitator to decide on these substantive issues will be unlawful.

3. Judicial Oversight of Decisions

The decisions made by a facilitator are not final and all rulings are subject to judicial review. The courts retain the authority to reconsider and, if necessary, alter any decisions made by the facilitator. This layer of oversight ensures that the best interests of the child remain paramount.

These limitations help maintain a balance between the facilitator’s role in resolving disputes and the legal authority of the courts.

Where the line is drawn

In TC v SC, the court ruled that it does have the power to appoint a facilitator in the best interests of the child, even without the consent of both parents. However, this power must be exercised with caution, ensuring that the facilitator’s role is limited to implementing existing court orders and not making substantive decisions about parental rights and responsibilities.

Finally, in M v Bruwer and Another, the court cautioned facilitators who are given powers to make directives to ensure that before issuing a directive, the parties are given a fair hearing in terms of Section 34 of the Constitution of the Republic of South Africa, 1996. This ruling emphasises the importance of ensuring fair processes in matters involving maintenance orders and the welfare of children.

Conclusion

While these principles have been developed in the context of family law, they are equally relevant in other areas of litigation, such as Road Accident Fund (RAF) claims and commercial disputes.

In RAF matters, for instance, mediation can assist in resolving quantum disputes and structuring settlements, ensuring fair outcomes without unnecessary litigation. Similarly, in commercial disputes, mediation allows businesses to preserve relationships and resolve conflicts expediently. The principles outlined in recent case law serve as a reminder of the effective role mediation can play within the legal parameters, to resolve matters expeditiously.