Legal Aid Board v R and Another

• Jurisdiction: South Africa
• Judge: Wallis AJ
• Judgment Date: 05 September 2008
• Citation: 2009 (2) SA 262 (D)
• Docket Number: 5493/02
• Hearing Date: 27 March 2008
• Counsel: C Woodrow for the applicant. I Stretch for the first respondent. JA Julyan SC for the second respondent.
• Court: Durban and Coast Local Division

Wallis AJ:

[1] There are occasions in the course of litigation where it is necessary, C in the poignant words of the Chief Justice, 'for the child's voice to be heard'. [1] This case deals with the mechanism by which that is to be achieved.

[2] The matter came before me in the motion court on Thursday 27 March 2008 by way of an urgent application by the Legal Aid Board, D the essential purpose of which was to secure the appointment of a senior attorney, Mr Patrick Stilwell, to represent the interests of the minor child S . . . R . . . (hereafter 'SR') in the ongoing and acrimonious litigation concerning her custody, which was due to recommence before Govindasamy AJ on Monday 31 March 2008. The application was supported E by the first respondent, the father of SR, and opposed by the second respondent, her mother. After hearing argument in the matter and bearing in mind both its urgency and the fact that another urgent application was awaiting disposal, I delivered judgment in the terms appearing from paras [3] to [9] below.

[3] The Legal Aid Board has the power in terms of the Legal Aid Act to F render legal assistance to a minor in discharge of the State's obligation in terms of s 28(1)(h) of the Constitution to provide legal assistance at the State's expense to a minor in certain circumstances.

[4] In deciding to render such assistance, the Legal Aid Board is not constrained by a need to obtain either the consent of the child's guardian G or that of any person exercising parental responsibilities and rights in relation to the child or an order of court. It is a matter within the discretion of the Legal Aid Board whether it should seek such consent or an order in any particular case.

[5] Mr Stilwell has accordingly been properly appointed to represent the H minor child SR in these proceedings.

[6] Had there been any doubt over Mr Stilwell's appointment and the matter had lain, as submitted, within my discretion, I would, in any event, have made that appointment for the reasons that motivated Judge Govindasamy to order on 27 February 2004 that such an appointment I be made, as well as because of the evidence that Mr Stilwell's appointment arose from an approach by SR to the Director of Child Line and his

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evidence on oath that, on both occasions on which he met SR, she A indicated that she wished him to represent her. I am also sustained in that view by the fact that Judge Govindasamy remains of the view that SR should be legally represented, a view I conveyed to the parties. I have borne in mind the views of the parties but they conflict on this, as on other matters, and are not decisive. I know of no basis upon which one B litigant is entitled to intervene in or influence a decision by the Legal Aid Board to appoint a legal representative to act in a civil case.

[7] I have borne in mind the criticism levelled by Ms Julyan SC [2] at Mr Stilwell, but do not believe this takes the matter any further. Firstly, this is not a review of the decision to appoint him. Secondly, on a fair C reading of the facts, it appears that some at least of the delay complained of arises from the second respondent questioning his authority to act, seeking to constrain him from consulting with the experts she proposes to call as witnesses before consulting with SR and resolving that it is not in SR's interests to be represented by Mr Stilwell. In the circumstances D I do not believe that it is appropriate for me to intervene even if I were empowered to do so.

[8] Ms Julyan's primary point was that Mr Stilwell's involvement would delay the proceedings. He has given unequivocal undertakings that this will not be the case and that he will be ready to proceed on Monday E 31 March when the trial resumes. I am not prepared at this stage, on the material before me and in the light of the matters in para [6] above, to go behind or question the validity of this undertaking from a senior and experienced attorney of this court.

[9] The order that I make is as follows: F

1.

Declaring that Patrick Newton Stilwell has been duly assigned as a legal practitioner to represent the minor child SR in these proceedings in terms of s 28(1)(h) of the Constitution, read with the relevant provisions of the Legal Aid Act. G

2.

Declaring that Mr Stilwell is authorised to consult with SR and any other person as he deems fit and to take steps as he deems appropriate to represent her interests in these proceedings.

3.

Directing both the first and second respondents to assist Mr Stilwell in engaging freely in such consultations with SR and to take all steps required by him including, if necessary, removing SR H from school attendance to facilitate such consultations.

4.

Both the first and second respondents are interdicted and restrained from taking any steps to hinder Mr Stilwell in the conduct of such consultations or the performance of his duties and to that end are restrained from discussing or seeking to I discuss with SR the nature or contents of such consultations or causing her to disclose them to any third person, including a medical practitioner.

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5.

A The second respondent is directed to ensure that SR is available at court on Monday 31 March 2008 if so required by Mr Stilwell. It will be sufficient compliance with this order if she is available to be brought to court and be present within 15 minutes of such a request being made or the presiding judge so directing.

6.

B There will be no order as to the costs of this application.

[10] Mr Woodrow, who appeared for the Legal Aid Board, indicated at the hearing that it would be of assistance to the board were I to supplement that judgment with additional reasons underpinning the decision, and I indicated that I was amenable to doing so. I was then C advised the following week that the protracted proceedings concerning SR's custody had been successfully resolved between the parties by agreement and took the view that, in those circumstances, the furnishing of additional reasons would not be necessary. However, I have now been advised that it is nonetheless desirable for me to furnish additional D reasons, as they may have a broader relevance than this particular case. Accordingly, I have prepared these additional reasons as supplementary to the judgment already given on 27 March 2008. In preparing them, I have deliberately anonymised the parties in order to diminish the risk of identification.

E [11] In view of the resolution of the custody dispute, it is unnecessary and undesirable to set out any great detail concerning it. In brief, the present first respondent, RR, the father of SR, brought proceedings in which he claimed custody of his daughter. These proceedings were commenced in 2002 at a stage when she was 5 years old, and were hotly contested. After 22 days of trial-hearing before Govindasamy AJ during F January and February 2004, the judge concluded that it was desirable that the interests of the minor child SR be separately represented. He accordingly made an order in the following terms:

(a)

That in the interests of the minor child, SR, it is declared that she is entitled to have a legal practitioner (preferably counsel) with skill G and experience in matrimonial law to be appointed to represent her in the action instituted by the Plaintiff against the Defendant, in order to advance her best interests in the custody and access disputes in the action, with the power to do all things necessary in order to achieve such objects;

(b)

the Minister of Justice and Constitutional Development is directed H to:

(c) (i)

take the necessary steps to ensure the appointment of a legal practitioner (preferably counsel) with suitable seniority, skill and experience to achieve the object of this order;

(ii)

ensure that such appointment is made by 19 March 2004;

(iii)

make payment of the practitioner's reasonable fees and I expenses; and

(iv)

inform the Registrar of this Court and the parties on or before 26 March 2004 of the identity and address of the legal practitioner so appointed.

It was recorded in the judgment that, at that stage, the parties were J agreed that SR should be separately represented and that arrangements

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to this effect should be made, although it was held that this could not be A done by the Legal Aid Board.

[12] A number of logistical problems arose in the implementation of this order. In the result, at a further hearing on 15 September 2004 Govindasamy AJ set aside his previous order. Although in doing so he stressed the need to bring the litigation to finality, that did not result for reasons B which are obscure, and the litigation dragged on with, so far as I could see, a rising tide of acrimony between the parties.

[13] The present proceedings flow from an sms sent by SR to Mrs Joan Van Niekerk, the National Co-ordinator of Childline South Africa, whose experience in dealing with the problems of children is virtually C unrivalled. The message she received from SR caused her to contact Dr Ann Skelton, the co-ordinator of the Children's Litigation Project at the Centre for Child Law at the University of Pretoria, and to ask her to intervene to assist SR in obtaining legal representation in the custody battle between her parents. Dr Skelton contacted the Legal Aid Board in Durban in this regard and suggested that it should appoint and assign D Mr Patrick Stilwell to this task. She did this on the basis that Mr Stilwell is a senior and experienced attorney with specific experience of representing children separately from their parents in acrimonious litigation on the issue of custody and access, and she was aware that he had previously acted in a similar matter in Durban with positive results. E

[14] Following upon the intervention of Dr Skelton, the Legal Aid Board...