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The Government’s Failure to Enforce Mediation Is Fueling Family Law Corruption and Child Abuse

Mediation is a fundamental pillar of any just and effective family law system. It serves as a critical tool to reduce conflict, protect the well-being of children, and ensure that parental responsibilities are equitably shared. However, in South Africa, the failure of the Department of Social Development (DSD) and the Department of Justice (DOJ) to make mediation and arbitration automatic and mandatory has directly contributed to unnecessary expense, conflict, prolonged legal battles, and immense emotional and financial hardship for families.

The Systemic Failure of the DSD and DOJ

The Department of Social Development and the Department of Justice have deliberately ignored the vital role of mediation in family law disputes. Their continued refusal to enforce mandatory mediation and arbitration processes exacerbates conflict during divorce, child contact, care, guardianship, and maintenance proceedings. This failure is not just an oversight—it is a direct and deliberate act of negligence that makes these institutions complicit in the abuse and suffering of children caught in adversarial legal battles.

By allowing high-conflict litigation to remain the default approach, the DSD and DOJ ACTIVELY encourage a system where families, particularly children, become automatic collateral damage in lengthy, expensive, and destructive legal wars. Instead of prioritizing the best interests of children, these institutions directly and explicitly enable lawyers, psychologists, and other professionals to profit from prolonged disputes at the expense of families who simply want a fair and just resolution.

The Devastating Impact of the Current System

Under the current system, divorces and disputes regarding child contact, care, and maintenance take years to resolve. The average divorce, contact, and care plan that is litigated through the courts takes, on average, between 5 to 8 years at an average cost of 1 to 5 million rand, for invariably one or both parents to walk away the same as or 11 times out of 10 worse off than when the started.

This deliberate financial abuse by lawyers, advocates, psychologists, and social workers intentionally aggravates and inflames conflicts between the parties.
There are multiple business models, i.e. wholesale, retail, hire to purchase, pay as you go, etc. The ONLY business model that fits the legal justice system is that of a con job. How is it possible that people (that have the means, let’s put that out there) pay such pornographic amounts of money for ZERO return of service or product?
The vast majority of the population does not have the financial wherewithal to hire a lawyer, let alone see the case through to resolution. A standard response from our members is I have run out of money, and my lawyer has abandoned me. The fact that these lawyers have done nothing to deserve their fees is a realisation that all members have and are thus reaching out to the likes of F4J to clean up the mess that these lawyers created.
Why is it taking so long for divorce, contact care guardianship and maintenance cases to filter through the courts where false allegations abound and are the norm? Why do Judges and magistrates allow this in the first place? By default, the judiciary is directly complicit in the deception.

During this time, children are subjected to immense psychological abuse as they are caught between warring parents and their enablers. The adversarial nature of litigation directly fuels hostility, deepens divisions, and makes cooperative co-parenting absolutely impossible.

Children who are exposed to prolonged legal battles suffer from anxiety, depression, academic struggles, and even long-term psychological trauma. The absence of an automatic, structured mediation process means that many of these disputes escalate unnecessarily, leading to outcomes that are neither in the best interests of the child nor fair to either parent.

The child-abusing divorce industry, which includes lawyers, advocates, psychologists, social workers and the legal justice system as a whole, are directly complicit and responsible for the abuse of our children.

The fact that the government, including but not limited to the Department of Justice, the Department of Social Development, and the Public Protector, to name a few, outright refuses to make the changes so desperately needed in family law makes them direct complicit accessories to the abuse of our children.
The state and the legal fraternity should be enforcing cooperation and co-parenting between parents – yet the ONLY! result that the lived experience of parents is delays, conflict and completely unnecessary, protracted and expensive litigation.

Mediation and Arbitration: A Proven Solution

Fathers 4 Justice South Africa (F4J SA) firmly advocates for an automatic 90-day completion period for all divorce-related disputes, including child contact, care, guardianship, and maintenance (CCGM) plans. This process must culminate in endorsement by the Family Advocate’s office and the Family Court to ensure legally binding and enforceable agreements within the confines (not exceeding) of 90 days.

One has to seriously question the motives of ANYONE wanting to extend divorce and CCGM beyond 90 days. What is their agenda?

The automatic and mandatory 90-day process must include:

  1. Mediation as the First Step: Parents must be automatically required to engage in structured mediation or alternative dispute resolution to create a parenting and maintenance plan within a set timeframe of 90 days. Mediation is a non-adversarial process that encourages cooperative problem-solving, reduces animosity, and focuses on the child’s best interests.
  2. Arbitration as the Second Step: If mediation fails due to one party’s frustrating the process, the matter must be referred to arbitration. The party responsible for derailing mediation must automatically bear the total financial burden of arbitration to prevent misuse and delay tactics.
  3. Finalization and Endorsement: Within 90 days, a finalized parenting and maintenance plan must have ALREADY been endorsed by the Family Advocate’s Office and ratified by the Family Court. This ensures a swift resolution and provides legal certainty for all parties involved.

Why Mediation Must Be Mandatory

Mediation is not an optional luxury—it is an absolute necessity in any functional family law system. The benefits of mandatory mediation include:

  • Reduced Conflict: Mediation fosters cooperation rather than hostility, reducing the emotional and psychological damage inflicted on children.
  • Lower Legal Costs: Litigation is financially crippling for the majority of families. Mediation is a cost-effective alternative that allows parents to reach agreements without excessive legal fees.
  • Faster Resolutions: Unlike drawn-out court battles, mediation ensures that disputes are resolved within a reasonable timeframe, allowing families to move forward with their lives.
  • Child-Centered Solutions: Mediation prioritizes the best interests of children, ensuring that their needs are met without subjecting them to unnecessary stress and uncertainty.
  • Healing Process: the sooner that parents can move of in the assurance that they have formulated a proper ADULT solution for their children, the sooner that the parents can begin the healing process that allows for them to heal and be the best possible aprrents to their children.

Holding the DSD and DOJ Accountable

The violently, hostile, blatant refusal of the DSD and DOJ to make mediation mandatory is not just a failure of policy—it is an outright betrayal of the children they so falsy claim to protect. By perpetuating a system that thrives on conflict rather than resolution, these institutions are directly, implicitly, and complicit in the abuse and suffering of children who deserve stability, security, and meaningful relationships with both parents.

The time for excuses and inaction has long since passed. South Africa must implement automatic mandatory mediation and arbitration for all family law disputes (i.e. NO ALTERNATIVE), ensuring that no child is forced to endure the trauma of prolonged parental conflict. F4J SA will continue to advocate for these necessary reforms, demanding accountability from the DSD and DOJ and fighting for a system that genuinely prioritizes the best interests of children and families. Section 71 of the Children’s Act is already in existence, which would allow both judges and magistrates by default to enforce mediation TODAY! the fact that they do not shows their direct complicit prolonging of the unnecessary conflict in divorce, family and child law.

The Various Mediation Laws in South Africa

​In South African family law, mediation plays a crucial role in resolving disputes related to marriage, divorce, maintenance, child care, guardianship, and contact post-divorce or separation. Below is a detailed overview of the pertinent Acts, including their numbers and specific provisions regarding mediation:​

1. Mediation in Certain Divorce Matters Act 24 of 1987

This Act establishes the office of the Family Advocate, whose primary function is to safeguard the interests of minor or dependent children in divorce proceedings. The Family Advocate investigates and mediates disputes concerning the welfare of children and provides the court with recommendations. The Act has been amended to enhance its provisions, notably by the Mediation in Certain Divorce Matters Amendment Act 121 of 1991, which allows for the appointment of Family Advocates for specific cases or multiple actions. ​Government of South Africa Government of
South Africa+1Government of South Africa+1
​The Mediation in Certain Divorce Matters Amendment Act 121 of 1991 introduces specific provisions to facilitate mediation during divorce proceedings. This Act amends the original Mediation in Certain Divorce Matters Act 24 of 1987 by incorporating the following key sections:​Lunch and Learn+1Justice.gov.za+1

​The Mediation in Certain Divorce Matters Amendment Act 121 of 1991 does not introduce new sections that directly advocate for mediation between divorcing parties. Instead, it amends the original Mediation in Certain Divorce Matters Act 24 of 1987 to enhance the existing mediation framework. The amendments focus on the appointment and remuneration of Family Advocates, who play a crucial role in mediating disputes involving minor or dependent children during divorce proceedings.​Law Library+1lunchandlearn.org.za+1

Specifically, the 1991 Amendment Act modifies:​

  • Section 2 of the 1987 Act, allows for the appointment of Family Advocates for specific divorce actions or applications, including individuals who are not officers in the public service.
  • Section 5 of the 1987 Act, addresses the payment of remuneration and allowances to these appointed Family Advocates and the recovery of such costs from the parties involved in the divorce action or application.

While these amendments facilitate the involvement of Family Advocates in divorce proceedings, they do not explicitly mandate mediation for the divorcing parties themselves. The role of the Family Advocate, as established in the original 1987 Act, includes mediating disputes concerning the welfare of minor or dependent children, thereby promoting mediation in cases where children’s interests are involved.

These amendments enhance the framework for mediation in divorce proceedings by enabling the appointment of Family Advocates for specific cases and detailing the financial aspects related to their services.​Wikisource, the free library+1Wikisource, the free library+1

2. Children’s Act 38 of 2005

This comprehensive legislation governs matters related to children, emphasizing their best interests. Sections 33, 34, 70, and 71 specifically address parenting plans and mediation:

  • Section 33: Encourages co-holders of parental responsibilities and rights to agree on a parenting plan detailing the exercise of these responsibilities. If disputes arise, mediation is mandated, requiring the assistance of a family advocate, social worker, psychologist, or suitably qualified person.
  • Section 34: Outlines the formalities for parenting plans, including the necessity for written agreements signed by the parties, which can be registered with a family advocate or made an order of court.
  • Section 70: Mandates mediation in disputes concerning a child’s care and contact. The court may refer parties to mediation before making a ruling on parental responsibilities and rights, ensuring that decisions are made in the child’s best interest.
  • Section 71: Grants the court authority to require parties to engage in mediation when determining guardianship, contact, or care arrangements. The objective is to promote cooperative decision-making between parents and reduce adversarial litigation.

3. Divorce Act 70 of 1979

While the Divorce Act primarily focuses on the dissolution of marriages, it has been amended to incorporate considerations for mediation, especially concerning the welfare of minor children. The Mediation in Certain Divorce Matters Act 24 of 1987 introduced provisions requiring courts to consider the recommendations of the Family Advocate before granting a decree of divorce or other relief involving children. ​Government of South Africa+1Government of South Africa+1

4. Uniform Rule 41A of the High Court Rules

Introduced on March 9, 2020, Rule 41A mandates that parties in High Court litigation must consider mediation at the earliest stages. Both parties are required to file a notice indicating their agreement or opposition to mediation, along with reasons. This rule applies to all civil actions and applications, including family law matters such as divorce and child custody disputes. ​Burger Huyser Attorneys+1 Spence Attorneys+1

5. Magistrates’ Courts Mediation Rules

As of June 9, 2023, Rules 70 to 79 of the Magistrates’ Courts Rules have been amended to incorporate mediation procedures. While mediation is not compulsory, parties are encouraged to consider it, and they must file notices indicating their stance on mediation. This amendment aims to promote alternative dispute resolution mechanisms within the Magistrates’ Courts. ​Justice+1Burger Huyser Attorneys+1

6. Court-Annexed Mediation

Implemented on December 1, 2014, court-annexed mediation allows disputes to be referred for mediation at any stage before judgment. This initiative aims to reduce court backlogs and promote restorative justice by providing a flexible, cost-effective, and reconciliatory approach to dispute resolution. ​Justice

One has to wonder why the courts do not use laws such as section 71 of the Children’s Act to reduce court backlogs. What is the agenda of judges and magistrates one has to ask?

7. Maintenance Act 99 of 1998

While the Maintenance Act does not explicitly mandate mediation, mediation can be a valuable tool in resolving maintenance disputes amicably. Parties are encouraged to engage in mediation to reach agreements on maintenance issues, thereby reducing the need for prolonged litigation.​

Once again, WHY is mediation NOT automatic and mandatory?

8. Marriage Act 25 of 1961

The Marriage Act primarily governs the legal requirements for marriage ceremonies and does not contain provisions regarding mediation. However, mediation may be relevant in resolving disputes arising during the marriage, particularly those related to family matters.​

Government Complicity in the Systemic Failure of Family Law

The failure of the Department of Justice (DOJ), the Department of Social Development (DSD), and the judiciary to enforce mediation under Section 71 of the Children’s Act 38 of 2005 is not just an administrative oversight—it is an intentional, systemic failure that perpetuates the suffering of children and families. By refusing to mandate mediation and arbitration in divorce, contact, care, guardianship, and maintenance disputes, these institutions actively contribute to unnecessary conflict, legal exploitation, and the destruction of family relationships.

Government’s Direct Role in the Abuse of Children

Children are the greatest victims of the government’s refusal to enforce mediation. The adversarial nature of South Africa’s legal system exposes children to prolonged custody battles, emotional distress, and financial hardship. Rather than providing a clear, structured path to resolution, the DOJ and DSD have allowed legal professionals to exploit the vulnerabilities of families for profit. Judges and magistrates, despite having the authority to enforce mediation under Section 71 of the Children’s Act, routinely ignore this provision, allowing disputes to fester unnecessarily.

This failure is not coincidental. It is a deliberate act of negligence that prioritizes the interests of legal professionals, social workers, and psychologists who benefit from prolonged conflict. The DOJ, DSD, and judiciary have aligned themselves with this exploitative system, making them direct participants in the abuse and suffering of children who deserve swift, amicable resolutions to parental disputes.

Systemic Failures and Their Consequences

  1. Failure to Enforce Section 71 of the Children’s Act
    • Judges and magistrates already have the legal authority to require mediation but consistently refuse to do so.
    • The result is prolonged, adversarial litigation that deepens parental conflict and harms children.
  2. Lack of Mandatory Mediation and Arbitration
    • There is no legal obligation for parents to engage in MANDATORY mediation or Alternative Dispute Resolution before resorting to litigation.
    • This absence of structure forces families into costly, time-consuming court battles instead of facilitating cooperative parenting agreements.
  3. Deliberate Delays in Divorce and Parenting Plan Completion
    • The lack of a fixed timeframe for resolving divorce, child contact, and maintenance matters leaves families trapped in legal limbo for years.
    • Children are left without stability, and parents—especially fathers—struggle to maintain meaningful relationships with their children.
  4. Judicial Bias and Corruption
    • Courts actively favor adversarial legal proceedings, which generate higher fees for attorneys and court-appointed professionals.
    • The DSD and DOJ’s failure to intervene exposes a justice system designed to exploit rather than protect families.

Solutions to Rectify This Crisis

The current state of South Africa’s family law system is unacceptable. Urgent reforms must be implemented to protect children, streamline family law proceedings, and eliminate the corruption that thrives within the DOJ, DSD, and judiciary.

  1. Mandatory Mediation and Arbitration
    • All family law disputes must automatically be subject to a compulsory 90-day mediation and arbitration process.
    • If mediation fails due to one party’s frustration with the process, arbitration must be enforced, with the responsible (the party that frustrated the mediation) party bearing all associated costs.
    • Rider: In order to get this to work, automatic, mandatory joint equal shared 50/50 contact, care, guardianship and maintenance from birth must be mandated. This notion that mothers are the superior parent must be put to bed once and for all. MOTHERS ARE NOT THE SUPERIOR PARENT – BOTH PARENTS ARE THE BEST PARENT. Should the government et al. Failure to do this, the violent gender bias towards fathers will continue unabated. Ergo, until such time that this is done, fathers must consider themselves not part of the problem. It is well documented that fathers’ rights movements in South Africa have consistently been part of the solution. The government, however, has consistently chosen to ignore fathers to this very day.
  2. Judicial Accountability
    • Judges and magistrates must be held directly accountable for their failure to enforce Section 71 of the Children’s Act.
    • Regular audits and disciplinary measures should be introduced to ensure compliance with mediation requirements.
  3. Legislative Amendments to Family Law
    • Amend the Children’s Act, Divorce Act, and Maintenance Act to explicitly mandate mediation as the first step in all parental disputes.
    • Include strict timelines ensuring that parenting and maintenance plans are finalized within 90 days, with enforcement by the Family Advocate and Family Court.
  4. Public Awareness and Legal Education
    • Educate parents on their legal rights and the benefits of mediation.
    • Hold the DSD, DOJ, and judiciary publicly accountable for their role in perpetuating legal conflict.

No More Excuses

The refusal of the DOJ, DSD, and judiciary to enforce mandatory mediation is a national disgrace. It is an intentional strategy that prioritizes profit over the well-being of children and families. The time for complacency is over. South Africa must demand immediate reform to ensure that no child is subjected to the unnecessary suffering caused by prolonged parental conflict.

Fathers 4 Justice South Africa (F4J SA) will continue to expose and challenge this corruption, advocating for a family law system that prioritizes children, promotes cooperative parenting, and eradicates the exploitation embedded within the current legal framework. The government must be held accountable, and the suffering of our children must end—now.

Until the government et al, urgently make the necessary changes so desperately required in family law – then, simply put, FATHERS ARE SIMPLY NOT THE PROBLEM ANY LONGER.

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