Mediators and Case Managers

THE HUMMEL CASE 2012

The Hummel case came before the South Gauteng High Court in July 2012. The Court determined herein that the relief sought by the Applicant in terms of which he required that a case manager be appointed to deal with any future conflict arising between co-holders of parental responsibilities and rights in respect of a four year old minor child was in fact beyond the jursdictional competence of the Court.

In terms of the application, the Applicant sought an order for either party to be permitted to approach the case-manager to resolve any conflict between the co-holders of parental responsibilities and rights and to provide inter alia guidance, mediation and recommendation therein. In the event of the case manager being unable to assist the parties to resolve the dispute, the case manager was entitled to make a binding decision which would be effective unless and until set aside by a competent Court.

The High Court reviewed the applicable legislation and came to the considered decision that there was nothing therein that authorised a court to impose a specific parenting plan on co-holders of parental responsibilities and rights.

The Court held that if parents are fit to hold or co-hold parental responsibilities and rights it must follow that they are fit to make decisions. If their conduct reaches a point where that power to decide cannot be safely left to them, one or both are at risk of a court withdrawing that power and conferring it on another.

The Court noted that whilst the applicant sought an order for a case manager to also mediate the matter, it stated that the role of the mediator was to facilitate agreement, this was not what the applicant was in fact seeking given his requirement that the case manager be authorised to make binding decision on behalf of the holders of rights and responsibilties.

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