Jenda: A Journal of Culture and African Women Studies (2003)
ISSN: 1530-5686
MOTHERS IN THE CORRIDORS OF THE SOUTH AFRICAN LEGAL SYSEM: AN ASSESSMENT OF THE JOHANNESBURG FAMILY COURT PILOT PROJECT
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Jenda: A Journal of Culture and African Women Studies (2003) ISSN: 1530-5686 MOTHERS IN THE CORRIDORS OF THE SOUTH AFRICAN LEGAL SYSEM: AN ASSESSMENT OF THE JOHANNESBURG FAMILY COURT PILOT PROJECT |
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Shereen W. Mills
In emerging nations and nationalisms, motherhood has historically operated as a strong symbol anchoring the 'nationalist imaginary'.1 Indeed, the march by thousands of women to the Union buildings to protest pass laws at the height of apartheid oppression became a powerful symbol of the struggle for liberation in South Africa. Not coincidentally, the fact that many of those women were mothers was central to the power of that symbolism. That motherhood is venerated in African communities is trite, and South Africa is no exception.
Within South Africa's national liberation struggle, it was feared that a focus on women's emancipation would divide the struggle, and assumed that women's emancipation would follow automatically on the liberation from racial oppression.2 The commitment since 1994 of the new constitutional democracy to gender equality illustrates the extent to which women have succeeded in becoming a moral touchstone of the new democracy. The early phase of the democracy thus saw great strides in the adoption of gender sensitive policies and reform of laws affecting women, with the broad objective of attaining gender equality. However, implementation of these laws remains a critical challenge, with changes in the administration of justice lagging behind changes in the substantive law.
This paper critiques the attempt by the post-apartheid South African government to achieve gender equality for poor black women and their children who comprise the majority3 of the population, by enhancing access to justice in the legal system, using as a case study the Johannesburg Family Court Pilot Project. It focuses on mothers' encounters with the legal system through the Johannesburg Family Court Pilot Project, which was established to assist poor families, when seeking to use the law to access divorce, child maintenance, protection from domestic violence and child abuse. It explores the inadequate response of the Court in providing women with redress in the selected areas of divorce, child maintenance and domestic violence.4
It starts by briefly exploring the application of Western feminist theory in the South African context. It then sets out the context of motherhood in South Africa, in particular, the changing nature of family, poverty, access to private child maintenance, and domestic violence. It then summarises the law reform process that led to the establishment of the Family Court Pilot Projects, and evaluates the Johannesburg Family Court Pilot in action.5 Finally, it analyses how the compromised process of establishing Family Court pilots has impacted on the functioning of the Johannesburg Family court in terms of the accommodation of mothers' needs, and their access to justice.
It concludes that the state's expressed commitment to address the accessibility of the legal system for poor women and children through the Family Court Pilot Projects has to date not translated into reality. A significant factor in this failure in Family Courts has been the allocation of insufficient resources towards implementation, exacerbated by the absence of policy guidelines and a uniform and comprehensive implementation plan.6 However it is also due to a lack of conceptual clarity around the context of women's lives and how best to meet their needs. That context did not adequately inform the decision to set up Family courts, leading to a lack of conceptual clarity, which, in the face of resistance to transformation, both in terms of race and gender, set Family Courts up for failure from the start.
Western feminist theory on motherhood has developed in a context substantially different from the gendered experiences of the majority of South African women. For African women the nuclear family pattern is not the norm, especially in the rural areas where extended family structures prevail.7 In addition, many are single mothers. Patricia Hill-Collins points out that centering feminist theorising on motherhood around white middle class women leads to two problematic assumptions. The first is that there is a relative degree of economic security for mothers and their children. The second is that all women have the racial privilege that allows white women to perceive themselves as individuals free to pursue personal autonomy, instead of members of racial groups struggling for freedom from racial oppression.8 This comment is particularly apt in the light of South Africa's history of institutionalized racial oppression, and it's deleterious effect on family structures and the socio-economic position of black women.
The private – public dichotomy central to western feminist theory was developed in a historical context that does not reflect the experiences of African women, most of whom work, moving constantly between 'public' and 'private' labour. As a result, responsibility for mothering is often shared with other family members, most often female siblings, sisters and grandmothers.9 In addition, mothering in South Africa is not just gendered, it is racialised. Historically, privileged women (usually white) have been able to delegate the more onerous mothering tasks to black women – a significant proportion of whom, particularly African and Coloured women, are employed as domestic workers in the labour market.10
However, certain aspects of the Western approach have relevance in the South African context, namely, that motherhood can make women vulnerable to sex subordination and domestic and economic oppression11 within the family, whatever it's nature, and that, in examining the patriarchal12 control of motherhood by male institutions, starting with the patriarchal family, poor black women fare the worst.
As Fineman points out, in the context of family, motherhood creates dependency not only because children are dependent, but because their primary caregiver 'becomes dependent on social [starting with the family] and other institutions for accommodations so that such care can be delivered'. Such institutions however do not facilitate the care of children, and it is typically women who bear the cost of social expectations associated with intimacy.13 The legal system is one of the institutions implicated in this paper.
Central to the legal feminist's theoretical framework and to the analysis in this paper is the concept of the gendered nature of the law.14 This is the premise that law is man-made, shaped by the experiences of the middle-class white male, and that the perspectives and lived experiences of certain groups, in this case black, socio-economically disadvantaged women, have been unrepresented in law, with resultant bias. Since the law assumes the vantage point of men, the experience of women as mothers and as survivors of domestic violence, in the context of power and inequality, is hard for the legal system to imagine, let alone find words for. Secondly, that 'law is to be discovered in actions as well as words – in the . . . implementation [my italics] of rules as well as in their formal doctrinal expression.'15 The gendered nature of the law is mirrored in the dual structure of the system, which privileges the rational over the emotional. Women are associated with the devalued side of the paradigm.16 Family law deals with emotions, so the concept of a Family court is quite different from that of a 'normal' court. Family courts should ideally incorporate attributes associated with women, such as empathy, and be structured to deal with emotional issues in a non-adversarial environment, using mechanisms such as alternate dispute resolution and social support services, that responds appropriately to users needs and does not discount the validity of emotions.
Socio-legal academics have extensively documented the effect of apartheid and the system of migrant labour on family life in South Africa.17 The division of families caused by apartheid, exacerbated by the poverty and political violence endemic to apartheid, has led to the breakdown of the family.18 The effect on women and children has been particularly harmful. The family is thus in a state of change in South Africa, particularly in the urban areas, with women bearing the financial burden of caring for children far more than was previously the case. Burman, in a 1990 study on the breakdown of African family life in Cape Town, indicates that over 50% of African marriages (civil and customary) end in de facto divorce. At least two-thirds of these cases involved children, custody of whom was awarded to mothers in most cases, and who then live with her or her family. Her research also indicated a high prevalence of children born out of wedlock to African mothers. These factors point to the likelihood that a significant proportion of children spend some part of their lives in female-headed households.19 The divorce rate amongst other population groups is also very high, with increasing numbers of children cared for by single mothers.20
More recent data confirm these findings. According to the 1995 October Household Survey, 46% of African children live with their mother only (the figure is 37% for Coloured children, and 10% or fewer for white and Indian children, with the overall figure for all population groups being 42%).21 Furthermore, having children is not necessarily associated with being married – 29% of women who have never been married have given birth.22
Mothers thus most often bear both the financial and physical responsibility of caring for their children. Property income plays a part in the single-mother family income only on the wealthiest section of the population.23 The options for poor single mothers, whose household expenses are often higher than two-parent families,24 are desperately limited.
Fathers have a legal responsibility to pay pro rata for the maintenance of their children, born in or out of wedlock, but the very high rate of maintenance default in South Africa seems to indicate a culture of non-involvement by fathers in their children's lives.25 Maintenance awards are notoriously difficult to obtain, and invariably small, but form a disproportionately significant proportion of single-mother family income, given the low earnings and high rate of unemployment of women, particularly African women, in this country.26
Thus, in order for poor single mothers to meet the needs of their children, they must work, and delegate the responsibility for childcare to others.27 Yet, women, especially African women, are most likely to be unemployed (47% in 1995)28, and if they are fortunate enough to find formal employment, tend to be clustered in low-status, insecure jobs where they earn little.29 At all levels of education, women earn substantially less than men, and are more likely to be unemployed.30 Informal sector work is most common among African women.31 However, most are engaged in elementary occupations such as street vending and scavenging, so earn very little.32 Not coincidentally, black women are very poorly educated.33
Statistics show that women in South Africa are more likely than men to live below the poverty line,34 and that 35% of all households are women- headed.35 These households are "disproportionately represented amongst the poor and face the highest risk of poverty in South Africa."36 De-facto women-headed households37 are more common amongst African women (41% at 1994). The mean total household income for women households is half of that for all households.38 Paradoxically, in 38% of African households the female head is named as the source of the largest income (Labour Force Survey February 2001).39
It is clear that there is a pronounced gender dimension to poverty in South Africa, which intersects closely with race. Apartheid policies of institutionalized inequality, coupled with patriarchy, have operated to ensure the socio-economic disadvantage of black, in particular African and Coloured women.40
The position of women in South African society is further exacerbated by the high prevalence of gender based violence. Research on domestic violence conservatively estimates that between 18 and 25% of women are involved in abusive relationships.41 Furthermore, four women a week are forced to flee their homes because their lives are in danger, and home is where about 70% of all violence takes place.42 The reasons why women stay in abusive relationships are complex. However, women's economic disempowerment plays a significant role in the decision to stay.43 This is reinforced by the fact that the majority of women who are abused in relationships have children,44 and indeed, women are more likely to stay in abusive relationships 'for the children'. Poor mothers in violent relationships thus have limited options, and are compelled to rely on the legal system for protection.
Debate about the need for Family Courts in South Africa goes back to the apartheid era, and was initially prompted because of the concern about the increased divorce rate in civil law marriages, contracted exclusively amongst white couples, and a small proportion of black couples (This concern excluded the majority of African marriages, as customary marriages were not recognized as 'legal marriages' in South Africa until recently,45 and also excluded marriages concluded under Muslim rites, which are still not legally recognized). Three state- appointed bodies considered the issue in the 1970's, and rejected the idea. Further investigation followed with the appointment in 1979 of the Hoexter Commission of Inquiry into the Structure and Functioning of the Courts. Coincidentally, 1979 also saw the coming into effect of 'no fault' divorce, in terms of the Divorce Act 70 of 1979, which saw a dramatic rise in the rate of divorce, and, while the principle of divorce attributed no fault, the distress experienced by parties to divorce proceedings remained a factor for concern.
The Hoexter Commission reported its findings in 1983, recommending the creation of a Family Court at regional magistrates' court level, open to all races, with jurisdiction over a wide range of family issues including maintenance and adoption. High Courts at the time were open to all races, but the cost of divorce proceedings in such courts was prohibitive, rendering them inaccessible to the majority of the black population. In addition, there were three Black Divorce Courts, which existed to serve African people in areas not covered by the courts in the former TBCV and homeland areas. These courts were situated at regional magistrates' court level, lower than the high courts, but their status was sui generis, as they did not fall within the magistrates' court structure. They were more affordable than the Supreme Court, but the quality of justice was comparably lower.46
These recommendations were ultimately not implemented because they were regarded as too costly. However, recommendations concerning the protection of the interests of children on divorce were put into effect by establishing the Office of the Family Advocate,47 which has jurisdiction only over divorces in the Supreme Court, and not to the Black Divorce Courts.
Ten years later, the Magistrates' Court Amendment Act 120 of 1993 was passed. It provided for the Minister, at some future date, to establish 'Family courts' to adjudicate on divorces and for the appointment of family magistrates (at the level of the magistrates' court) to such 'family courts'. Section 2(k) of the Act provided that the Minister may set up a family court by notice in the Government Gazette. The Act was heavily criticized for a number of reasons. These included - the creation of a hierarchy of justice, with Family Courts for the poor and High Courts for the rich; the perpetuation of a multiplicity of fora and the consequent inconvenience for family court users, particularly mothers, who would have to go to one court for divorce, another for child maintenance; and still another where domestic violence was an issue; that no provision was made for involvement of the Family Advocate to protect the interests of the child in these courts; that no provision was made for counseling or mediation; and that the quality of justice would be lower than that of the High Courts.
These criticisms must be seen in the context of race and class divisions in South African society, with poverty the lot of the vast majority of black people, which would effectively result in Family Courts servicing black people, and most white people using the Supreme Court.48 Given the nature of family law, most of the Family Court users would be poor black women.
In the transition to a constitutional democracy, the Magistrates' Court Amendment Act 120 of 1993 was not put into operation. Criticisms of the Act led the Department of Justice to consider alternative mechanisms for the establishment of Family Courts. In March 1995, the Department appointed a second Hoexter Commission of Enquiry into the Rationalisation of the Provincial and Local Divisions of the Supreme Court, with the objective of bringing the Supreme Court in line with the principles of the interim Constitution. It was also mandated to look at the need for specialist courts such as Family Courts.49
The Department of Justice recognized the severe limitations in the administration of justice, and that poor black women and children have difficulty accessing courts where they are faced with lack of support, inefficiency and delays in obtaining relief. So the idea of a Family Court was to bring all family- related legal matters, which go to the core of people's lives under one roof where they would be treated with empathy and professionalism. It was also recognized that there was insufficient time and financial resources to set up the 'ideal' Family Court.50
Thus it was that in June 1996 the then Minister of Justice, in the face of mounting political pressure to address problems of access to justice for women and children in the family, indicated his intention to establish pilot Family Courts in terms of existing legislation.51 This decision was regarded by many commentators as premature, and indeed politically opportunistic. However, the Minister's decision was an attempt to speed up the pace of reform on the issue of Family Courts, in the face of internal resistance to transformation on the part of the 'old guard' in the Department.52
Pursuant to his intention, the Minister set up a National Family Court Task Team on Family Courts in February 1997, to take responsibility for implementing a Family Court pilot project as referred to in section 2(k) of the Magistrates' Court Amendment Act 120 of 1993. At about the same time, Black Divorce Courts, which historically operated at regional court level, were opened to all races.53 These courts formed the basis for the Family Court Pilot Projects, and further divorce courts were created in the two pilots where there were no 'black' divorce courts.54 The pilots were placed at magistrates' court level to enhance access to justice (in the limited sense of accessibility of location and affordability).
The Task Team, recognizing that Family Courts should ideally be created in terms of new legislation, but that this would take time and that resources were limited, recommended that Pilot Family Courts be set up in terms of existing legislation, using existing resources, and that the maintenance, domestic violence and children's court components of the Magistrates' Court be transferred to the Family Court Pilots. It was stressed that the Pilots should be an interim measure and a source of information for the creation of a permanent family court structure.55 Five pilots were set up in Johannesburg, Durban, Cape Town, Port Elizabeth and Lebowakgomo, between 1998 and 1999.
The Department of Justice's decision to finally set up Family Court Pilot Projects was informed, at least partially, by the context of the disintegration of families and emerging new family forms, the gendered nature of poverty and the high prevalence of abuse of women and children.
The Department of Justice, in it's 1997 Discussion Paper on Gender Policy Considerations56 affirms the commitment in Justice Vision 2000 that 'equal access to justice to all regardless of race, culture, gender, economic status .is one of the critical pillars for any emerging democracy', with the ultimate objective being a system that is 'representative of and responsive to the needs of the entire South African community.' To achieve this, the way in which the legal system deals with issues of relevance to women requires scrutiny. The law needs to be informed by the gendered experiences and needs of women, and practices must be changed to make legal procedures less alienating for women. Gender must be integrated into the transformation of the legal system. The triple oppression of most women through gender, race, and class, and its manifestation in lack of education and consequent illiteracy, lack of employment and poverty, is acknowledged.57 The development of gender policy to ensure practical access to justice and thereby facilitating the empowerment of women is emphasized as a key role of the Department, with the constitutional right to equality58 as one of the main guiding principles of such policy.59
New laws such as the Domestic Violence Act 116 of 1998, and the Maintenance Act 99 of 1998, were developed taking into account different family forms, and were part of a broad reform effort to ensure women's access to justice in the face of vulnerability to poverty and violence in the home. However, implementation of these laws (and their predecessors) had been problematic prior to establishment of the Family Court Pilot, which merely incorporated the maintenance, domestic violence and children's court components under one roof, together with the divorce court component.
The motivation for establishing a Family Court during the apartheid era (in terms of the first Hoexter Commission Report) was thus preservation of the family, with an emphasis on reconciliation.60 If all else failed, protection of children of the marriage was essential. Women in the divorce process were 'wives', and also often 'mothers', but, outside of that relational status, lacked legitimacy. Poor black women were simply invisible.
A second investigation, mandated under the new constitutional democracy, was more inclusive. It took cognisance of the position of black people, in particular different family forms such as customary unions, that had gone unrecognised by the apartheid government, and the changing nature of family in our society. The resultant report (released in December 1997) recommends that the Family court have jurisdiction over customary and religious unions.61 It also more realistically recommends, as an integral part of the divorce process, conciliation to help estranged spouses to communicate over disputed issues to 'make their parting less traumatic for them as well as their minor children'.62 And, perhaps less realistically, that Family Courts be situated at High Court level but charge lower court tariffs.
Not surprisingly, research on the functioning of the Johannesburg Court Pilot Project, discussed below, reveals a lack of conceptual clarity around the context of women's lives, and unequal power relations between women and men (both within the patriarchal family structures like marriage and outside of that structure when mothers try to access child maintenance). There is thus no coherent conceptual framework on how best to meet the needs of families, whether the emphasis should be on reconciliation of the 'family', that is, husband and wife, or ensuring through conciliation that women's vulnerable position in relation to men is addressed. The gendered nature of poverty does not adequately inform treatment of mothers in the court and nor is it sufficiently considered in granting relief, in divorce, maintenance and domestic violence proceedings, making real access to justice elusive.
The notion of a Family Court is that a wide range of family law issues are catered for in a specialist court with staff skilled in and sensitive to family matters, with the aim of minimising trauma to families in conflict. The main features of such a court include the provision of social support such as alternate methods of resolving family disputes by a process of conciliation (such as counselling, and mediation, where appropriate); integration of services so that cases are treated holistically and efficiently, as domestic violence, child abuse, divorce, and child maintenance are often linked; and userfriendliness. Taken as given was that the court would cater for poor, disadvantaged families (in particular, women and children) and communities, who would not be able to afford legal representation.
The 1997 Hoexter Commission report sets out certain basic principles fundamental to the concept of a Family Court,63 which, read with the Department of Justice concept document on Family Courts, flesh out the ideal structure for a Family Court Centre:
In October 1998, the Johannesburg Family Court Pilot Project was set up within a fragmented legislative framework, with no additional budget allocation, and under a divided structure of authority. The latter has had a particularly adverse impact on the functioning of the Johannesburg Court.
The Family Court Pilots were set up at magisterial level, that is, regional for divorce, and district court level for the other components of the court, that is, maintenance, domestic violence and children's court. The overarching challenge was to ensure that the poor did not get inferior justice. The newly deracialised Central Divorce Court in Johannesburg was chosen to form the divorce component of the Family Court. All the other relevant components of a Family Court, that is, maintenance, domestic violence and children's court, including the staff in those courts, were moved from the main Johannesburg Magistrates' court, to the Divorce court building. The new pilot was thus set up with many inherent obstacles to it's effective functioning.
This paper presents a summary of selected findings of a research project evaluating the functioning of the Johannesburg Pilot Court.64 The research took place over two years, between September 2000 to October 2002. At the commencement of the data collection, the Pilot Project had already been in operation for two years.
The research used both qualitative and quantitative research instruments. It hinges on a perspectival approach to evaluation, using interviews and questionnaires. It takes account of the perspectives of all roleplayers and stakeholders, from the Department of Justice, court management and administrative staff (insider perspectives), to court users, the legal profession, NGO services providers (outsider perspectives), and the Office of the Family Advocate. It also uses objective observation of court processes.
Perceptions of the vision for, and objectives of, the Family Court, and challenges to realising the vision and objectives, were canvassed from roleplayers in the Department of Justice and the court. The National Task Team's vision for a family court structure was that it 'would have it's own identity; be accessible to the community; be sensitive to it's needs; operate according to simple, appropriate procedures; and provide a quality service in a pleasant user-friendly environment.'65
The specifics of that vision become attenuated further down the hierarchy, with most respondents, with some exceptions, discussed below, vague on what exactly was envisaged for Family Courts. Most staff working in the Family Court thought integration (in the limited sense of providing services together in one building and assisting each other) and specialisation were good ideas, as well as user friendliness. Respondents were generally anxious about and committed to improving services to families in dispute, but did not have a clear idea about how this should be done. Of particular concern was that most respondents were vague about alternate dispute resolution (ADR) as well as about integration of services, both central to the concept of a Family Court.
This lack of clarity can be attributed in part to the absence of policy guidelines and implementation strategy from the Department of Justice. It can also be attributed to failure to communicate the vision effectively down the ranks, and resistance on the part of senior roleplayers in the Johannesburg Magistrates' court to the concept, caused by factors such as lack of or insufficient consultation, and uncertainty about lines of authority. Factors such as the absence of a coherent management structure, lack of capacity, understaffing coupled with little or no training, and inadequate resources, hinder the ability of the court to realise it's objectives.
Lines of authority: No one person was put in charge of the Johannesburg Family Court Pilot. The divorce component and the magistrates' court components, that is, maintenance, domestic violence, and children's court, are separately headed and indeed, in the case of the magistrates' court components, continue to be governed from afar by the Johannesburg Magistrates' Court.
The divorce component of the court, situated at regional court level, has always operated independently. The judicial head of this court, the Acting President, was a new appointment, versed in the vision for Family Courts and committed to its objectives. Her vision for Family Courts emphasizes the importance of offering integrated and co-ordinated family services, both legal and social, to support the family. The judicial head of the court believes that the focus of a Family Court should be on reconciliation (except in domestic violence cases where forcing women to reconcile can be potentially dangerous for them), family preservation and social cohesion with empathic staff sensitive to social context. Her influence has however been limited to the divorce component of the court.
The other components of the court operate at district court level and fall under the direct control of the Johannesburg Magistrates' Court, whose commitment to the concept of a Family Court appears to be equivocal, with family law still regarded as less important than other areas of law. A senior magistrate from the Magistrates' Court, based at the Family Court, 'heads' these components of the Family court. He reports to the Chief Magistrate of the Johannesburg Magistrates' Court, and does not have the same degree of autonomy for the kind of creative decision-making required to make the court work.
His vision for Family Courts is that it is a specialised court staffed by experts on family law, with the specific objective of helping the poor – needy women and children and abused women and children. However, there is little evidence of attempts to realise this objective in the running of these components of the court. For example, he refused to comment on the need for mediation, since he viewed mediation as an administrative function, explaining that there was now a strict separation of administrative and judicial functions. As the conciliation process is an essential aspect of a Family Court, this attitude impacts negatively on realisation of the vision for and objectives of the Johannesburg Family Court Pilot Project.
The consequence of this structural patchwork is that there are no clear lines of authority and management - each component has its own history, and its own ways of working. This has resulted in 'deeply entrenched divisions' between the divorce and the other components of the Court.66 This, in the absence of policy guidelines and an implementation strategy, and coupled with resistance to transformation, has hindered integration and, as a consequence, efficiency. A staff member at the court says, 'Everyone in the Family court and the Magistrates' Court seem to be pulling in different directions. There is a lot of confusion – people don't feel part of family courts – 'there is not a family here'.
Resources: Budgetary constraints have been identified by all role players as a major problem in the running of the pilot. There is no budget for the Johannesburg Pilot as an entity, nor is there a line item in the budget for the component courts, as the Court is a pilot. According to Budlender67 the Johannesburg Pilot was expected to proceed without any funds additional to available budgets (from the divorce and magistrates' court components respectively). Historically, the divorce court component has always had its own budget, and then the other components of the court are catered for out of the budget allocated to the Magistrates' Court. The budget for the Magistrates' Court was cut in 2000, with the result that payment for paternity testing was stopped. It is not clear how much of the Magistrates' Court budget is allocated to the Family Court, but it is generally assumed that the bulk of the money is used for criminal matters. The dependency of the major component of the Family court on the Johannesburg Magistrates' Court for money to run the court is a major obstacle to the efficient running of the Family Court, and is felt most harshly by poor mothers attempting to access maintenance and domestic violence orders.
Facilities for staff: According to national Department of Justice, all resources needed were provided in terms of a list of needs identified, that is, staff, furniture, building, computers, information desk. However, the lack of resources is clearly apparent in the court. The law library in both the divorce and the magistrates' court components of the court is outdated (law reports end in December 1999); magistrates' complain about leaking roofs and windows; the only fax machine servicing the entire magistrate's court components – divorce, maintenance, and children's court, had been out of order for months; the 15 magistrates' in the magistrate' court components share 4 recording machines; and there is a shortage of computers. In addition, female staff complained that the toilets in the building are often out of order and dirty. These factors all impact on the quality of service delivered to court users, as well as affecting the morale of staff.
Staffing & training: The main challenge caused by inadequate resources, however, is understaffing and lack of training of existing staff. The Johannesburg Family Pilot has an immense workload, with the biggest maintenance court in the country. The caseload is estimated at 4000 to 5000 matters per month.68 Staff generally felt that staff shortage was a major problem, and that training in people skills was essential, particularly for administrative staff who were the 'face' of the court.
However, it is also apparent that training for administrative staff in hard skills, that is, family law, especially new laws like the Domestic Violence Act 116 of 1998, and conducting maintenance enquiries in terms of the Maintenance Act 99 of 1998, is even more essential, as well as training for divorce administrative staff, who also perform quasi-legal functions, such as mediation and assistance with completion of summonses and pleas. It is also essential to have additional staff with legal training, such as paralegals, to assist with form completion in all components, as there are very few or no staff allocated to assist users with completion of forms to institute proceedings.
1. The divorce component currently only has one presiding officer, who also heads the divorce component of the court, as Acting president. She sits at the Johannesburg Court two to three days a week, and goes on circuit the rest of the week. The Court handles up to 70 divorces a day, and 150 a day on circuit (presumably this figure includes processing of new applications; postponements; unopposed and opposed hearings; and granting of final orders). There is clearly a need for more judicial staff.
2. Shortage of administrative staff result in staff multi-tasking. They also perform tasks requiring specialised legal skills for which they have no training. For example, a senior administrative clerk assists unrepresented court users with drafting legal pleadings, and other senior staff assist informally with mediation in an attempt to get the parties to agree on division of the joint estate, and also with conciliation where one of the parties to the proceedings do not want a divorce. Volunteer law students69 assist first-time court users with drafting of pleadings, but are only available at certain times of the year, so court users are often turned away as the available administrative staff cannot assist them all in one day. Administrative staff in this component has however had informal in-house training in responsive service and sensitivity to social context of court users.
1. Judicial staff in the maintenance and domestic violence components of the court felt that there were not enough judicial staff, resulting in ad hoc rotation of magistrates' between the maintenance and domestic violence components. Rotation between components of the Family Court is desirable, as it assists with specialization in family law and with integration, provided it is part of a coherent policy on rotation. More problematic is that judicial staff is rotated not only between the two components of the Family Court, but within other criminal and civil sections of the Magistrates' Court. Magistrates at the court said that they had chosen to work in family law. They regarded themselves as playing a critical social role in attempting to resolve family disputes. However, they are subject to the whims of the Johannesburg Magistrates' court. They felt unsupported by the Department of Justice and the latter Court, where their colleagues regarded family law as inferior. The difficult conditions under which they worked, coupled with the stressful nature of the work, contributed to their feelings of isolation and marginalisation. This was exacerbated by their perception that the Family Court was not wanted by management in the Department of Justice and the Johannesburg Magistrates' court. This has led to uncertainty about the future of Family Courts, and their own futures.
Most of these magistrates' usually work in maintenance. Their duties are divided between maintenance hearings, enforcement of maintenance orders, and offences relating to maintenance orders. Only one is allocated to deal with offences relating to maintenance orders, resulting in unnecessary postponements of matters, and underutilisation of the small staff of prosecutors available. This is very detrimental to mothers seeking maintenance for their children, given the great difficulty that they have getting defaulting fathers to court.
Although four magistrates are allocated to domestic violence, there are usually only one or two available for domestic violence work on any day, dealing with 100 new applications a day. This results in superficial treatment of cases, with a detrimental effect on the quality of protection orders for women.
The only formal training offered to judicial officers on family law is limited in scope and duration. Previously, only training on maintenance was offered, but domestic violence was recently now included in the curriculum. One magistrate commented that not all magistrates have been trained – many were recent appointments, either straight from college, or from the criminal courts. The consensus was that there was a need for more training, and for revision of the curriculum.
2. Shortage of administrative staff is critical, in maintenance and domestic violence, where there is also a high turnover of staff. Domestic violence is severely understaffed, with five clerks allocated to this section to process up to 100 applications a day. NGO70 volunteers, who are not available every day, assist with legal advice and completion of forms. Clerks may assist when they have time, but given their workload, they are rarely available to fulfil this function.
The majority of administrative clerks are employed in maintenance. Only three of these clerks are allocated to process new applications, and they open a limit of 30 new cases a day. This means that many mothers whose application for child maintenance are not processed on one day, have to return to the court the following day.
In addition, the National Prosecuting Authority in 2000 withdrew the prosecutors who worked as maintenance officers71 from the Family Court, and whose role was to represent the interests of the child in maintenance disputes. This has caused major problems as administrative clerks have had to assume the role of maintenance officers. Their duties as envisaged by the Maintenance Act are wide-ranging, and include conducting enquiries into maintenance claims, mediating between parties on quantum, and conducting formal enquiries before a magistrate, in the event of non-settlement. They are not legally qualified (although some are studying) to perform this function, nor have they been legally trained or trained in mediation, and are out of their depth when they have to argue against attorneys and advocates. In addition, they receive no training in gender issues, and may not even be aware of what it costs to raise a child.72 According to a respondent on the prosecutorial staff, they are not coping well and this compromises the service to the women and children claimants. There are no staff allocated neither to explain rights and legal process to first-time court users nor to assist them with completion of the forms necessary to institute proceedings. These functions are carried out by NGO's volunteering in the court.73
Maintenance investigators, an innovation in the new Act to assist maintenance officers to locate respondents in maintenance actions, have still not been appointed. They are 'the teeth' of the Act and the failure to appoint them renders the Act largely ineffective.
Administrative staff have access to service excellence training offered by regional Department of Justice in theory, but many have not been able to take advantage of such training, as understaffing limits the ability to send staff for training. However, there is no formal in-house training programme, nor is there any training in hard skills. Given that the duties performed by administrative staff in the Family Court are often legal in nature, for example, assisted form completion and informal maintenance enquiries, training in family law is essential.
Integration: All respondents acknowledged that while they have managed to put everything under one roof, simply put, there was 'no integration' of services. A respondent from the divorce court commented, 'I haven't met the people next to me, that is, maintenance and domestic violence. So I cannot see family violence and refer them to a specific person . And it's now – two or three years, we were never introduced.' There is very little interaction between the divorce component and the historically magistrates' court components of the court, attributed to 'power struggles' between judicial management of the components, euphemistically referred to by senior management in Department of Justice as 'obstacles to integration.'
As long as the Family court is governed by two Heads, with separate budgets and legislation, substantive integration of services will remain elusive. Senior management in the Johannesburg Magistrates' Court is quoted as saying, "The Family Court must be emancipated from the control of the Chief Magistrate." The role of Family Courts is different, so it should not be part of a predominantly criminal court structure, that is, the magistrates' court. While court users are happy to have the services under one roof, there has been no effort to integrate services offered to court users. At the most, there are referrals from divorce to maintenance, or domestic violence. Over 70% of court users sampled had been back to court more than three times, and a significant proportion of these users had returned for different family reasons, for example, domestic violence and divorce, domestic violence and maintenance, maintenance and divorce, so there is a strong need for integration of services.
Alternate Dispute Resolution (ADR) Services and the involvement of the Family Advocate: Social support is presently largely provided by NGO's at the Johannesburg Family Court Centre, if at all. Conciliation and mediation is not provided except informally and on a very ad hoc basis in divorce, by staff unqualified in ADR. NGO's provided counselling, conciliation and mediation services to court users at the inception of the pilot project in divorce, but have since left for reasons relating to lack of support and provision of infrastructure from management in the Family court, and financial constraints. Informal enquiries to mediate quantum settlement in maintenance are performed by staff who are generally underqualified, and have an unmanageably large caseload. Counselling for survivors of domestic violence is provided by NGO volunteers at the court once a week.
Interventions aimed at conciliation and healing, such as counselling, should however be a structured part of the way the court functions, and should occur before unrepresented parties reach the litigation stage. The use of mediation to facilitate settlement agreements between parties in custody, matrimonial property, and maintenance disputes is essential to the concept of family courts, firstly because it allows parties to resolve issues in a forum more sensitive to their needs, and secondly because, if successful, it eases the burden of litigation on the judicial staff. The availability of ADR mechanisms has fluctuated since the inception of the Pilot. It has depended on the ability of NGO's and community volunteers to offer the services at no cost. The quality of mediation is another aspect that merits concern. It is important that mediators are trained to understand the gendered context of women's lives, particularly the interaction of poverty and oppression on women, and are sensitive to power imbalances between women and men, whether in family relationships, or outside of those relationships where children are involved.74
The 1997 Hoexter Commission envisaged an expansion of the role of the present Family Advocates' Office under new legislation, to accommodate these services, with a specialised branch of trained Family Counsellors (called the Family Counselling Service) being a part of the Court. They would attend to reception (an advice desk); conciliation (including mediation), and support service for the court (for example, social welfare investigations). The Commission also envisaged a wider jurisdiction not limited to children but extended to the whole family, and not limited to children in divorce only. There has been no legislation for this expanded role for the Family Advocates' Office, although the Family Advocate is reported to be involved in the domestic violence and children's courts where the interests of children are involved.75
The Family Advocates' Office remains traditionally linked mainly to the Divorce court however, and its role remains that of inquiring into the best interests of children in divorce. Furthermore, whereas in the High Court, all divorces involving children are referred to the Office of the Family Advocate, at the Family Court, issues around custody and access on divorce are only referred to the Office at the discretion of the Presiding officer, usually when custody is in dispute, and it takes three to four months to get a report from them. The Family Advocate is thus less accessible to poor mothers, and this is attributed, once again, to lack of resources. The Office is very understaffed, and has to rely on volunteers to assist. Some members of the Office did not regard themselves as part of the Family Court, and felt the need for more interaction to facilitate flow of information, and to be 'filled in on the broader picture.'
Analysis of structural limitations: These findings give an indication of some of the difficulties experienced by judicial and administrative staff working at the Johannesburg Family Court Pilot Project. Integration, essential to efficient running of the pilot, is hindered generally by a number of factors. These include the lack of a coherent legislative structure, and clear lines of authority; the absence of policy guidelines and an implementation plan; the Department of Justice's inability to bring roleplayers on board in the transformation process, particularly those in the magistrates' court component; and consequent resistance by the Johannesburg Magistrates' Court to what has been essentially a process driven by the divorce component. This has led to a lack of political will and commitment to the Family Court by the Magistrates' Court.
While limited resources is a problem generally in the whole of the Family Court pilot, including the divorce component, lack of commitment by the Magistrates' Court has had a particularly adverse effect on the ability of the magistrate's court components to function effectively within the Family Court Pilot. Criminal law is prioritised by the Magistrates' Court, as evidenced by the fact that most of the budget allocation goes to criminal work, and that judicial staff are recalled to work on criminal matters at whim, with the result that 'women's issues' have to compete for resources in the system.
In addition, having two nominal Heads, both with strong personalities and different ways of doing things, has led to a lack of cooperation over essential issues. The effect of this is the conspicuous absence of control over and supervision of staff and processes in the various sections of the court, inefficiency and low staff morale. The separation of the judicial and administrative functions has contributed to this lack of control, particularly in the magistrates' court components.
The most worrying aspect is that, notwithstanding the fact that the court was set up to cater for unrepresented accused, little has been done in the way of providing legal advice or assistance with form completion, many of which are in effect court pleadings and determine the nature and scope of the relief granted. Where assistance is provided by court staff, as with divorce court summonses and pleas, the quality is of an indeterminate standard, as staff are overworked and underqualified. In domestic violence, the only consistent help with completion of the forms is provided by NGO's, who are available only on certain days of the week. How the forms are completed determines whether protection orders are granted, and their extent. In maintenance, women are referred to NGO's based in the building for assistance with form completion. Many however are not aware that they can get help from the NGO's. The impact of these issues on mothers' access to justice in the Family Court pilot, in particular, divorce, maintenance and domestic violence, is explored in more detail below.
Accessibility is assessed both in the elementary sense of user-friendliness of the court infrastructure (building and facilities), and in the substantive sense of access to justice, that is, language, cost, alternate dispute resolution mechanisms, and legal assistance for court users, the vast majority of whom are mothers.
Demographic profile: A court users' survey, which targeted 100 court users, gave a sense of the demographic profile of the court users, as well as the most common problems experienced by them.76 87% of the respondents sampled were women. 72% were either unmarried or divorced, and 94% had children. The sample did not differentiate between men and women with regard to marital status and children, but, given the relatively small proportion of men in the sample, it is clear that the majority of court users are single mothers (either unmarried or divorced). 83% of the users were African, 13% Coloured, 1% Indian and 3% White. 52% had a monthly household income of less than R500 (marginally above the poverty datum line), and 20% of between R500 and R1 500. 97% of court users were unrepresented.
Over half of the court users had come to court to claim child maintenance, 34% to obtain protection from abuse, and 8% had come for divorce-related matters. For 62%, this was not their first visit to the court, with most people having come to court more than three times previously. Most of the returnees were following up on protracted maintenance claims, and some had come back a number of times for different family problems, for example, maintenance and divorce; domestic violence and divorce, maintenance and domestic violence.
Infrastructure and facilities: The building which houses the Family Court Centre is described by one court user as a 'rabbit's warren'. The building was renovated at considerable expense for criminal and civil matters, and is wholly unsuitable for family law matters, with an excess of courtrooms and not enough waiting and consulting rooms. It is extremely difficult to find one's way around the building, with a multitude of narrow corridors and staircases, and insufficient direction signs. The spatial setup impacts negatively on accessibility and user-friendliness. Court users stand crowded along the narrow corridors, some with babies and small children, waiting endlessly for assistance from the administrative staff. Maintenance, which is spread over three floors, is particularly crowded. In domestic violence, the lack of consulting rooms means that there is little privacy for abused women.
The majority of users are women and mothers, and yet there are no baby changing facilities or nursing rooms, and the toilets are filthy. There is a childcare facility (a private initiative of a member of the divorce court staff) which was made available to court users at a fee, but it appears that it is no longer available to court users.
Cost: Transport costs were an issue for most users who had to return to the court for relief numerous times. Users complained particularly about the maintenance court, where inefficient case management and understaffing resulted in endless waiting and postponement of matters. Each time they had to return to court meant a day of income lost, either from waged employment or, self-employment (usually in elementary occupations such as selling food). Because of the infrastructural unfriendliness of the building, most mothers did not bring their small children with them, so had to find someone to take care of the children in their absence. This discouraged many women from pursuing maintenance claims and seeking protection orders in domestic violence cases. Many complained about sheriff's costs, in domestic violence cases, and in maintenance cases, particularly where the respondent was hard to find, or avoided service of summons. Paternity testing, which is no longer sponsored by the court, is exorbitantly expensive, and simply unaffordable for mothers. Thus where the father does deny paternity, mothers do not have any further recourse to obtain maintenance.
Language: Notices and forms are mainly available in English and sometimes Afrikaans, which poses great difficulty to court users, 83% of whom were African, and 74% of whose first language was one of the official African languages. No accommodation is made for illiterate users.
Access to justice: the low education levels of the majority of poor women means there is thus a great need for legal advice and assisted form completion. Forms are complex, and even educated court users have difficulty completing or understanding them. Indeed the term 'forms' is a misnomer in that many of the so-called forms are legal pleadings, such as divorce summonses and domestic violence applications.
Where there is assisted form completion, as in divorce, it is inadequate, as staff is unqualified legally and has too large a workload to assist properly. Domestic violence and maintenance rely on the assistance of NGO volunteers who are spread too thin already and so available only at limited times. Women in cases where the father / husband is represented are at a particular disadvantage as state funded legal representation, such as that provided by the Legal Aid Board, is currently not available for family law matters. The Legal Aid Board has committed its resources to providing legal representation in criminal matters (mainly men), and does not fund indigent women in family matters. Such women are unlikely to be able to afford private legal representation, given the gendered nature of poverty. Our research on the maintenance court shows that maintenance officers, whose function in contested maintenance applications, is to protect the interests of the child, are inadequately qualified for this function, and do not cope well when arguing against lawyers representing the father in a dispute. In addition, research on implementation of the Domestic Violence Act 116 of 1998, in the Western Cape,77 shows that men are increasingly either defending protection orders, or applying for counter orders, rendering the protection against abuse nugatory.
Procedure for the unrepresented first time court user: Most applicants in divorce proceedings at the court are women. There are long queues of court users waiting to be assisted, and a long wait for assistance. Seating is available in this component of the Family court. Users are assisted in the Enquiries office, which is staffed by two clerks who are multilingual. They are given a Summons form to complete. The Summons is available only in English and court users have difficulty understanding the summons, even those who understand English. The clerks behind the desk spend much of their time explaining legal concepts like 'matrimonial property system'. However, they have no time to explain properly, given the workload and amount of users. The general perception is that staff in this office are friendly and helpful, but the office is understaffed, and this compromises the quality of service to court users. This office also assists users to defend an action, which involves drafting a plea in response to the Summons.
There is a requirement that court users bring their ID documents, marriage certificates and revenue stamps to court. First time court users complain that they were not aware of these requirements, and are only told about it after a long wait in a queue. There is a sign stating the requirements, but it 'had seen better days' and is also only in English.
Once the Summons is complete, the court user moves to another office where the case is registered, and a case number issued. It is not clear whether the summons is quality checked and if so, by whom. The court user is then directed to the relevant Sheriff's Office to issue the Summons.
The cost to the court user is R20 for a revenue stamp and approximately R60 for Sheriff's charges to deliver the Summons. Other costs include transport to get to court (which is often a wasted trip if user does not have the required documentation or if the user cannot be assisted on the same day) and transport to the Sheriff's Office.
Some court users complained about being given a form to fill in but not told how to do it, unfriendliness and unhelpfulness, and that they waited the whole day without being helped. These experiences are generally exceptional, but they do point to a chronic staffing shortage (there was a total of nine administrative staff members at last count) and consequent stress on staff which no amount of training in sensitivity to court user's context will remedy.
One court user observed was in such a state that she did not bother to read or understand the contents of the Summons – she said 'she did not care much for forms, as she just wanted to get the divorce over and done with.' Another was on his way to the Sheriff's Office to issue the Summons, when he asked our student researcher to explain division of the joint matrimonial estate to him.
Trial Proceedings: Court users find the court procedure and the Presiding Officer intimidating, despite efforts to make the environment more casual and friendly. Unrepresented court users appeared to understand the proceedings, their rights were explained to them, and the interpreter's translation was accurate. However, there are too many cases for one Presiding Officer to handle and this compromises the quality of justice to court users. During the period of our court observation she handled over 40 opposed cases in one day, including postponements.
Women do not get immediate relief in all issues pertaining to divorce. Child maintenance in unopposed actions is routinely referred to the maintenance court for determination, so mothers have to go through the system over and over. Referral to the maintenance court, considering the state of that court, is a gross dereliction of duty on the part of the divorce court. It indicates that the court does not fully appreciate the extent of poverty that mothers and children suffer on divorce, and that child maintenance is often a disproportionately large part of the income of women-headed households.
By comparison, in the High Court, judges in unopposed divorces routinely grant orders for maintenance claimed in granting a decree of divorce. Because women in such cases are usually represented, the amount ordered for maintenance will at least be partially based on a thoughtful assessment of the needs of the children.
Mediation: As discussed above, there are no formal mediation services offered by the court. Once or twice a week the Presiding Officer will refer, at her discretion, certain cases to a senior to a designated senior administrative staff member to mediate in disputes around property division or if one of the parties to the proceedings does not want the divorce. The staff member is not trained in mediation, so she says that she does not mediate as such, she 'just talks to them to see if she can get them to settle'. As she has other duties, parties have a long wait for assistance. Over the period of observation, she did however successfully mediate settlement between parties.
Mediation in disputes around division of property is essential for unrepresented women in divorce, before litigation (in represented divorces, the attorney will negotiate on her behalf to obtain settlement). If agreement is not reached on the precise terms of the division (who gets what) and made an order of court, it is often impossible for these women to get their share of the matrimonial property. Procedures to enforce an order in the divorce decree for 'division of the joint estate' are inadequate, and poor black women are most disadvantaged.78 For women who can afford representation in the High court, it is standard procedure for parties in dispute over the matrimonial estate, to work out a detailed settlement agreement, which is then made an order of court. In the divorce court, decrees are too often granted without prior resolution of these disputes, making the rights contained in the decree 'not worth the paper' they are written on. Women thus are involved in further legal procedure for enforcement. Unless there is a fixed property, such as a house, or pension, most women do not bother to fight further, because of the emotional stress, inability to access legal representation, and because of the time and expense involved. Even though there is relatively little property involved, these are the women who need their property most.
The Family Advocates' Office, whose role remains that of enquiring into the best interests of children in divorce, plays a limited role in the Family court. Whereas in the High Court, all divorces involving children are referred to the Office of the Family Advocate, at the Family Court, issues around custody and access on divorce are only referred to the Office at the discretion of the Presiding officer, usually when custody is in dispute. The Family Advocate is thus less accessible to poor mothers.
Domestic violence:
Procedure for the first time court user: There is a small open reception area with benches, crowded with women. All the clerks but one are male. Court users are female, mainly black (African and Coloured). At 8h00, one or two clerks explain what the court does and the procedures to waiting court users (in English, Afrikaans, and Tswana). Illiterate people or those who don't understand the forms, which are in English, are told to consult their neighbours for help. Anyone who arrives after the talk does not get the benefit of this orientation. The women register their names at a table.
One clerk gives court users the relevant forms to complete. He performs a screening function so they first have to tell him what the problem is before he will give them a form. They are forced to cluster around him and he is 'impatient and not friendly, also loud in his interrogation' of them so there is no privacy or confidentiality.
Whichever clerks are available assist with completion of forms, and volunteers from POWA assist one or two days a week. Usually women have to complete the forms on their own (earlier findings indicate that women were sent home with the forms and told to return the following day. This has since changed, with a magistrate working after hours until every woman waiting has been assisted).
Once the forms are completed, court users are then directed to a clerk who checks and signs the Affidavit and processes the case. It appears that clerks are more concerned with procedure than with substance, and that they decide which cases are eligible for protection orders. This is problematic as, not only are they not legally trained, but they do not have discretion in terms of the Domestic Violence Act 116 of 1998 to decide the case. This unofficial filtration function is analogous to the position of rape complainants, where police decide whether or not to register the complaint. Superficial management of complaints due to the large workload also influences whether or not women are granted relief, and the quality of that relief.
A clerk takes processed files upstairs to a magistrate for the granting of orders while the court users wait downstairs. Court staff goes on tea all at the same time at 11h00 and leave users waiting. When they go on lunch all court users must leave the building. Women wait for most of the day for their protection orders. Women interviewed said they found the waiting terrible, especially not knowing if they would get the order, and if so, on the same day.
One user observed had come for a protection order for her daughter, sent by the police. She had her three children with her. She arrived at 8h00 and was attended to at 10h25. The file was taken up to the magistrate. She was granted a protection order for her daughter at 14h30 (the Act makes provision for the granting of a protection order for any child in the care of the complainant, in circumstances of domestic violence which includes sexual abuse). Another court user who was covered in bruises said she could not wait all day for an order, as her children were alone at home, so she left after lunch.
One user was illiterate and could only speak Afrikaans. She asked the student researcher to assist her, as she could not get help from the clerks. Many other court users had difficulty with the form as it is in English.
Users surveyed were particularly upset about staff rudeness and impatience; that they did not listen and shouted at them; the lack of privacy and confidentiality; and the long wait for relief. Research on domestic violence generally documents the difficulty that women have firstly admitting that they have been abused, then taking steps to get help. The treatment of women in the Family Court reflects a lack of awareness of the context of women's lives (such as that most of them are mothers with children to take care of), their experience of abuse, it's effect on them and that it is potentially life threatening. Instead, it contributes to further traumatisation of the abused women, and may discourage women from getting a protection order. It is clear that women find the process to be disempowering because of the lack of empathic treatment and privacy, inadequate legal advice and the complexity of the forms.79
Unfortunately, given the nature of our research, we were not able to assess the quality of the orders given to any great extent, as proceeding took place, in theory at least, in camera. In particular we could not assess whether effect was given to any of the substantive provisions for ancillary relief in the Act such as 'emergency monetary relief' for maintenance of mothers and their children. It is likely, given that women most often have to complete the affidavit themselves, that they are not fully aware of their legal rights, and that untrained clerks then screen their cases to determine eligibility for the most basic protection order, that such ancillary relief is seldom granted. This conclusion is bolstered by the fact that magistrates on domestic violence duty in the Family Court do not automatically issue protection orders, often issuing toothless 'peace orders' instead. Whether they will issue either a protection order depends on whether there is a 'domestic relationship' in terms of the Act, according to their interpretation.80 There is a perception amongst magistrates that there is a danger in issuing protection orders because of the suspended Warrant of Arrest so they are 'strict' about issuing them.
Maintenance:
Procedure for the unrepresented first time court user: The maintenance queries office has seating, with women queuing up to make enquiries. First time court users are given application forms (first timers), instructed to complete them, and then take them to another office for processing. Those who have difficulty completing the form are directed to the office of an NGO on the 3rd floor. Forms are only available in English. Women were observed assisting each other to complete the forms. One court user observed, although she was very literate and had completed secondary school education, found the form complex and difficult to complete unassisted.
Once the form is complete, the court user takes it to another office to have it processed. The queue outside this room was extremely long and moved very slow. One official came out of an office and told the women waiting that they could either wait or go! The court user observed arrived at the court at 9h00, and she was only assisted by the official processing new applications at 14h00. She was given a return date of 11 June 2002 (two months and nine days later), as was a second court user observed on the same day. This court user had a baby on her back and experienced great difficulty making her way around the crowded corridors.
Informal maintenance enquiries: If both parties are present on the return date specified, informal maintenance enquiries are held by maintenance officers in an attempt to reach a mediated settlements. The congestion in this section of the court is unbelievable. Scores of people, mainly women and children, waiting in queues that stretch along the narrow corridors of the second floor. There is nowhere to sit and no waiting room.
The proceedings are meant to be 'in camera', but the twelve maintenance officers share four offices so the privacy of the proceedings are negated as there are many interruptions with staff coming in and out of the office 'to clarify something'. This is also the reason why files get lost (the matter had been referred to the Department of Justice but nothing had been done so far).
The particular maintenance officer observed spoke seven of the official languages, and was skilled at getting parties to calm down and reach settlement (Court management however comment that most of the maintenance officers are unqualified for the functions of maintenance officer). Mothers observed complained however that the amount of maintenance finally agreed upon was insufficient, and that the maintenance officer did not have enough time to deal with their cases properly, so they felt pressured to settle.
If settlement is reached, it is usually made an order of court by a magistrate on the same day. On the days observed, there were problems finding magistrates' to make the settlement an order of court.
One court user was observed over three consecutive days: on the first day she waited in a queue all day to see a maintenance officer to assess her case. She returned at 7h00 the following day but had to join the queue again. When she was finally attended to, she was told that there was a shortage of magistrates, and she should come back the next day. She returned at 7h00 again on the third day and had to join a queue to see a magistrate. Her case was finally heard just before lunch. Her problem was a simple one – she wanted her ex-husband to continue supporting her daughter who was over 21 and studying. She waited three days to find out that the daughter would have to come and apply for continued maintenance herself. Her only means of income was selling sweets at a school in Soweto, so she lost three days income.
If no settlement is reached, the parties go before a magistrate (usually on the same day) and are given a return date for a 'quantum trial'.81
Maintenance default enquiries: On the first day of observation, there was a crowd of court users waiting outside the court. The magistrate arrived at 10h45. He heard one case dealing with failure to comply with a maintenance order. The woman was present but the respondent was not. The case was postponed for another month. He then adjourned for tea and returned to the court at 12h45.
On the second day of observation, a court user from Grobblerdal (300 km from Johannesburg) was interviewed at 8h30. He waited the whole day for the case to be heard. In the afternoon he was told to come back the following day as the magistrate did not have time to hear his case. On the third day of observation, his case was finally heard in the afternoon. Both parties were present, and the respondent was ordered to pay the arrear maintenance in addition to the monthly maintenance. The woman claimant interviewed after the case expressed relief that the matter was finally resolved, even though the amount of maintenance granted was small. Also, she was relieved that she would not have to take any more time off work to come to court.
On all days observed, the magistrates explained to the respondent the right to legal representation, and interpreters were used so parties could understand the proceedings. The main problem observed over the period of observation is that too many cases are scheduled for one day, so the magistrate postponed many cases. He asked if parties objected to the postponement but parties did not raise their concern that their cases had been postponed a number of times before. They seemed intimidated by the proceedings.
Court users had numerous complaints about the maintenance court. Many complained that they had to keep returning to the court without getting relief, and had been waiting for a year or longer to have their matters finalized. Either their files were lost, or they waited all day and had to return the next day because no-one was available to assist them, or their matters were postponed for up to three months. Disrespectful and unhelpful treatment by staff was the norm - 'They shouted at me in room 116 because I filled the form wrong'; 'I was sent up and down looking for my file. I was told there was nothing they could do - I must look for the file myself.' Also that the court was harsh with them when they made mistakes ('They asked me how much was the arrears, I could not remember, it was written on the file, but they postponed the case again'). Some claimed to have come back 19 or 20 times and found this very discouraging. Transport costs was a big issue, as well as leave from work or lost income. Many could not afford to pay for service of the summons on the defendant.
Some of these problems predate the new Maintenance Act and the coincidental incorporation of the maintenance court into the Family Court Pilot Project, particularly problems relating to understaffing and administrative dysfunction which result in lack of preparation and numerous postponements. The South African Law Commission,82 acknowledged in 1998 that 'the maintenance system is in disarray', hence the need for legislation revising the system.
However, many are failures complained of under the new Act, for example, failure by the court to trace defaulters and to investigate avoidance tactics by fathers or to inform mothers about the availability of a garnishee order on the respondents' salary, and non cooperation by employers.
Problems peculiar to the Family Court, and shortcomings in implementing the vision for Family Courts, include:
the absence of staff to assist mothers to advise mothers of their rights and to assist with completion of application forms;
unqualified maintenance officers compromising mothers' chances of getting maintenance where the matter is defended by the father;
maintenance officers treating the informal enquiry into maintenance superficially as they are overworked and untrained, resulting in mothers having to accept maintenance amounts that are inadequate for their children's needs (one mother reported that she had been threatened that if she did not accept a stipulated amount of maintenance, they would 'cancel the case');
decreased supervision / management oversight of staff, which contributes to the inefficient processing of maintenance cases, with many mothers never getting the relief they seek.
Poor mothers in the maintenance court are thus faced with unsympathetic and rude staff, inefficient and superficial handling of their cases, resulting in numerous postponements of matters. The most difficult aspect of a maintenance investigation is finding the father, and getting him to court. The Act makes provision for active investigation by the maintenance officer, and then referral to a maintenance investigator to find the father. There are insufficient maintenance officers to actively investigate any claim, nor are they legally trained as envisaged by the Act. And maintenance investigators are yet to be appointed in terms of the Act. Mothers are thus burdened with finding the fathers of their children, and have to pay the sheriff's fee for service of pleadings on the father. Once he is in court, however, inefficiency and postponements allow him to slip through the net once more. Mothers thus have to return to the court over and over, with little hope of relief. For many, the financial cost in terms of time off work, transport, and sheriff's fees, together with having to find childcare each time they go to court, because the court is so user-unfriendly, becomes too much, and they give up. The system is so notoriously bad, that it is only desperation that drives mothers to the maintenance court in the first place. They have to rely on the hope that the father's sense of duty to his child will motivate him to appear in court, as the system will allow him to evade his obligations with impunity.
Analysis of the history of Family Courts, pre- and post-1994, reveals a protracted and relatively fruitless law reform process.83 This can be attributed partly to difficulties inherent in the transition to a constitutional democracy. Resistance to a process of transformation that seeks to ensure equality for all South Africans is not unique to the legal system. However, resistance to transformation does not give a complete account of the failure of the Johannesburg Pilot to treat women, and in particular mothers, with care and address their need for access to justice.
The Department of Justice set up the pilot projects to enhance access to justice for poor women and children. However, the Department failed to provide the Johannesburg Family Court with the minimum resources necessary for effective functioning, failed to provide policy guidelines and an implementation plan, and then failed to provide support for the projects once they were established. More fundamentally, in conceptualising the project, the gendered experience of women's lives in South Africa has not sufficiently informed strategy for meeting the need for access to justice for poor women, making it difficult for poor single mothers to access matrimonial property, child support, either at divorce or though the maintenance court, and for women generally to access protection from domestic violence.
Poor mothers are most vulnerable to domestic and economic oppression within the family, as motherhood inevitably creates dependency. Mothers in abusive family situations, and single mothers, have to rely on social institutions to accommodate their need to care for their children. The legal system is often their last recourse. Yet the quality of justice afforded to poor, inevitably black, women in the Family Court confirms the fears of commentators on the law reform process that justice is only affordable to the rich.
It was recognized that women would be mainly unrepresented, yet no coherent strategy was devised to provide legal assistance to women in the Family court. Consequently, the court experience is disempowering to women and the quality of relief granted is often compromised. The context of poverty also means that the enforcement of remedies provided by the court, such as division of the joint estate, are inaccessible for most women. The absence of quality legal assistance negates women's access to justice.
Fundamental to the broad vision for Family Courts is the recognition that family disputes are emotionally painful, that women are particularly vulnerable in these situations, and that empathic treatment is necessary. Yet empathy seems a rare and inconsistent phenomenon amongst staff at the Johannesburg Family Court, perhaps because the needs of the staff are not met, leading to consequent lack of commitment to the vision.
In a country with limited resources and widespread poverty, like South Africa, the ideal Family court will perhaps remain elusive. Recent developments84 on the future of Family Courts offer some hope of improvements to the system. However, the danger still exists that notwithstanding the development of policy development taking account of the context of women in South Africa, policy implementation evidences no real appreciation of women's gendered lives.
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Citation Format
Shereen W. Mills. (2003). Mothers in the Corridors of the South African Legal System: An Assessment of the Johannesburg Family Court Pilot Project. Jenda: A Journal of Culture and African Women Studies: Issue 4.