RETHABILE MOSESE | Family law reform must not block poor families from court

For a parent or caregiver trying to get maintenance, contact with a child or urgent protection, one more compulsory appointment can mean another taxi fare, another day without pay and another delay before help arrives.

That is why South Africa should pay close attention to the draft Family Dispute Resolution Bill, published after the South African Law Reform Commission approved its Project 100A report on family dispute resolution.

The bill wants to move many family disputes away from court and into mediation and other less adversarial processes. The aim is understandable. Court battles can be expensive, slow and painful, especially for children.

But a reform meant to divert families from conflict must not end up diverting poor families from justice. Mediation can help some families. It can reduce hostility, save time and help parents reach agreements without a long court fight. But it is not safe or fair in every case.

The problem is compulsion. When mediation is voluntary, it may give families space to repair. When it is mandatory, it can put pressure on a person who is already afraid, broke or being controlled by a former partner. That person may feel pushed to settle, to appear reasonable, or to keep quiet.

This is especially dangerous in relationships marked by domestic violence, intimidation or coercive control. A person may sit in mediation and seem to agree while thinking about what refusal will cost: money withheld, contact with children disrupted, threats intensified.

Fear can be hidden beneath politeness. In those cases, “agreement” can become the respectable language through which inequality is disguised.

If government cannot fund and supervise a safe, affordable system, it should not compel families to use it.

The constitution protects children’s best interests and the right of access to courts. That means family justice reform cannot simply be measured by how many matters are kept out of court.

It must be measured by whether children are safer, whether caregivers can get urgent help, and whether poor families can use the system without being punished by cost, distance or fear.

The Law Reform Commission says mandatory mediation, with exceptions, would be constitutional. That may be right on paper. The real test is whether those exceptions work for people standing in court corridors without lawyers, money or time to waste.

The bill does recognise the danger. It says mandatory mediation should not apply where there has been a coercive or abusive relationship, and it requires professionals to ask about this at the start and throughout the process. That is important. But it will only matter if “throughout” means real, repeated screening, not a tick-box question at the first meeting.

Court staff, mediators and programme providers must understand abuse, fear and unequal power. A survivor should not have to prove danger again and again before being allowed to approach a court. Refusing mediation should not count against someone without first asking whether fear, poverty, disability, distance or coercion shaped that refusal.

Cost is just as important. If family dispute resolution requires fees, transport, repeated appointments or professionals found mainly in cities, the burden will fall hardest on poor families. What looks like a humane alternative for those with money can become another locked door for those already struggling to enter the justice system.

If the state requires families to use mediation or other dispute resolution processes before court, then the state must fund, regulate and monitor that system. It must be free or genuinely affordable.

It must be available outside urban centres. It must provide clear emergency routes to court. It must keep checking for violence and coercion, not assume that one question at intake is enough.

Otherwise, family dispute resolution risks becoming a two-tier system: careful support for those who can pay and under-resourced processing for those who cannot. That is not access to justice. It is justice rationed by income.

The bill is an opportunity to make family justice less hostile and more child-centred. But it should be welcomed only if the system it creates is safe, affordable and easy to bypass in urgent or high-risk cases. ‘Before court’ must never mean no court.

If government cannot fund and supervise a safe, affordable system, it should not compel families to use it. Otherwise, a reform meant to divert families from conflict may divert poor caregivers, many of them women, and children from justice.

• Mosese is an admitted attorney, accredited mediator and LLD student at the University of Pretoria.