The Duty on Regional Court Magistrates to conduct Proceedings Inquisitorially when presiding over Undefended and Unopposed Divorce Matters

Paper presented at the 2013 CLEA Conference in Durban

Eben van der Merwe
Supervising Attorney, Campus Law Clinic, School of Law, University of KwaZulu-Natal

Professor F Noel Zaal
School of Law, University of KwaZulu-Natal

The North Eastern Divorce Court, (deemed to be an inferior court) was originally established to cater for the “black people” of South Africa. Since the advent of a constitutional and democratic South Africa, the services of the court were made available to all race groups in South Africa. The court at present, mainly caters for the needs of financially disadvantaged people who cannot afford the services of legal representation. In a recent appeal from NE Divorce Court, the High Court of KwaZulu-Natal recently considered whether there was a duty on a Magistrate presiding over an undefended/and opposed divorce matter to conduct the proceedings in an inquisitorial manner. The court made the following comment: “People approaching the North Eastern divorce court were not people of substantial means or education, and in those circumstances there was a particular duty on presiding officers, indeed on those who represent them, to ensure that sufficient and proper to evidence was elicited and present it”. This statement seems to it impose an inquisitorial duty on a Presiding Officer, presiding over an undefended/and opposed divorce matter. Most of the literature dealing with adversarial and inquisitorial approaches, deal with civil trials. A cogent argument can be made for extending the principle set out in this case for the argument that a “less adversarial trial” would be in the interests of all concerned in litigation involving family law. Several countries have adopted a less adversarial approach to family law matters. This paper will advance the argument that in all matters, concerning family law, a less adversarial approach will enhance the service to members of public involving in family law disputes.

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