Divorce mediation conflicted with judicial ethos – judge

Windhoek

Judge Maphios Cheda from the Oshakati High Court has condemned a practice in which a father mediated in cases where his son was one of the legal representatives.

“Such practice will tarnish the image of the court, legal profession, the legal practitioners involved and the mediator himself,” Cheda said after hearing substantial arguments on the plausibility of the issue. The matter emanated from a court-accredited mediation between two parties involved in divorce proceedings.

Cheda asked the legal representatives of the two parties to present him with arguments when he realised that one of the legal representatives is intimately related to the mediator.

According to Cheda he voiced his displeasure on two previous occasions where Jan Greyling Snr, a retired legal practitioner, had been allocated cases in which his son, Jan Greyling Jnr, was involved. “On those occasions he agreed with me and other mediators that other mediators should handle such cases,” Cheda stated.

However, he said, despite all this, Greyling (Jnr) has again with the concurrence of the assistant registrar in charge of the Alternative Dispute Resolution Office allocated a matter to Greyling Snr where the son is representing one of the parties.

“What prompted this judgement is that in the present matter Greyling Junior has argued in open court to the effect that his father is an independent person and the parties have agreed that he presides. It is his view that there is no prejudice to any party and further that there is no provision in the High Court Rules precluding his father from presiding over such matters where he as a legal practitioner is representing another party.”

According to the judge he was not satisfied with that argument and thus invited both counsels to file heads of argument to clarify the matter once and for all. Both counsels filed arguments in support of the practice saying there is nothing untoward for Greyling Senior to mediate as he is an experienced and neutral mediator. Cheda applauded the arguments, especially those of Greyling Junior, which he called well researched and well stated. The judge further said that Greyling Junior submitted that a judge has no authority to query the appointment of a mediator where both parties agreed.

This argument however holds no water, the judge said, as the lawyers seemed to lose sight of the fact that the court has the common law power to intervene where justice and fairness are being compromised.

“The court cannot stand by when it realises that the justice system is being compromised. The court does not operate in a vacuum but within a live environment and must be seen to have a human face and has a duty to protect the image and dignity of the legal system,” Cheda emphasised.

He further said: “The fact that the parties’ legal practitioners agreed that Greyling Senior be appointed as mediator and therefore the court should not interfere is a fallacy as the court cannot rubber stamp decisions which offend even the basic sense of impartiality and fairness. The situation the Greylings found themselves in is such a calamity, and it is my duty to rectify the situation.”

According to Cheda, the fact that Greyling Senior and Junior are father and son compromises the whole process as it is unreasonable to expect Junior to forcefully and effectively argue a case before his own father. “The situation is undesirable and would place both of them in difficulties,” Cheda stressed.

He added that while he did not doubt the professionalism of Greyling Senior, it is the public’s perception which is the determining factor after all and concluded that the practice where a father is a mediator where his son is the legal practitioner for one of the parties should never be allowed, as it goes against the ethos of impartiality and will in the eyes of right-thinking persons be viewed as biased. “Such practices will tarnish the image of the court, the legal profession, the legal practitioners involved and the mediator himself,” Cheda stated.

January 2017
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