SS v Presiding Officer, Children's Court, Krugersdorp and Others

• Jurisdiction: South Africa
• Judge: Saldulker J and Potgieter AJ
• Judgment Date: 29 August 2012
• Citation: 2012 (6) SA 45 (GSJ)
• Docket Number: A 3056/11
• Hearing Date: 19 April 2012
• Counsel: AM Skelton for the appellant. W Mokhare (with N Ali) for the respondents. S Budlender for the amicus (the Children's Institute).
• Court: South Gauteng High Court, Johannesburg

Saldulker J (Potgieter AJ concurring):

Introduction D

[1] Children are the soul of our society. If we fail them, then we have failed as a society. Mr ML and Mrs NL did not fail SS, the minor child and the appellant in this matter. He was brought to live with them in 2002 by his mother, Ms PS, during her lifetime, when he was just over E one year of age. They raised him as their own child, supporting him from their meagre earnings. After the minor child's mother died on 18 June 2007, ML reported the matter on 8 November 2007 to the Department of Social Development in Krugersdorp. However, it appears from the social worker's, Ms Natanya Kriel's, report that, because of the serious backlog in the casework of social workers, the case was unattended until F it was brought to her attention in February 2010. It was then that the relevant investigation, into the background and foster screening process to assist the Ls in their foster care application for the minor child, began.

[2] An application for a foster care order was brought by the Centre for Child Law on behalf of the minor child and set down in the children's G court in the district of Krugersdorp. Pursuant to the inquiry in terms of s 155(1) of the Children's Act 38 of 2005 (the Children's Act), the commissioner, Mr M du Plessis, on 20 January 2011 delivered judgment, including the order that the minor child was, inter alia —

'not in need of care as envisaged in the Children's Act 38 of 2005. No H foster care order is made. It is recommended that the applicants give consideration to the alternative mentioned earlier in my judgment.'

[3] This appeal is against the judgment and order of the commissioner. It is specifically directed against the finding by the commissioner that the I minor child is not in need of care and protection as envisaged in s 150(1)(a) of the Children's Act, and the consequent refusal to place the child in foster care. As a result of the findings made by the commissioner, the second respondent, the Minister of Social Development, sought to intervene in this appeal. The intervention of the minister in this appeal centres on the issue that a proper interpretation and application of the Children's Act are fundamental to foster uniformity in J

Saldulker J (Potgieter AJ concurring)

A the orders of judicial officers in the children's courts, who deal with many applications for foster care and foster grants.

[4] An application at the outset of this appeal for the Children's Institute to be admitted as amicus curiae was also granted. It was common cause B among the parties to this appeal that the commissioner committed several misdirections when he found that the minor child was not a child in need of care and protection as envisaged in s 150(1)(a) of the Children's Act. There was a commonality of views expressed by all the parties, that the commissioner erred both on the facts and the law in interpreting s 150(1)(a); that the appeal should be upheld and the minor C child be recognised as a child who is in need of care and protection in terms of the Children's Act; that the Ls should be admitted as his foster parents; and that the minor child should be granted a foster care grant.

[5] Furthermore, all the parties accepted in this appeal that the minor child can obtain a foster child grant if he falls within the meaning of D s 150(1)(a) of the Children's Act, which provides:

'A child is in need of care and protection if, the child . . . has been abandoned or orphaned and is without any visible means of support.'

Although much was made by all the parties in regard to the question whether 'and' in the latter part of the section should read 'or', this interpretation was abandoned by all the parties at the outset of the E hearing of the appeal.

[6] In my view the legislature carefully chose the word 'and', suggesting a careful deliberation to choose language that is consistent with the intention of the Children's Act. The choice of the word 'and' was not casual or arbitrary but intentional. The approach of the Minister of F Social Development in this regard was the correct one. The 'and' should remain as an 'and' [1] and the focus should be on the words 'without any visible means of support'.

Saldulker J (Potgieter AJ concurring)

[7] The question that needed to be addressed was the proper interpretation A of the words 'without any visible means of support', and whether the words pertained solely to the means of the child and not the caregiver. All the parties were of the view that the commissioner erred in his interpretation of the phrase 'without any visible means of support'. The interpretation of the clause in s 150(1)(a) must be in accordance with s 39(2) of the Constitution, 1996 (the Constitution), and in keeping B with the spirit, purport and the objects of the Bill of Rights and the best interests of the child.

Background

[8] The child in this matter is an orphan and is presently 12 years of age. C He was born on 26 February 2000 in the Eastern Cape where he lived with his mother and grandmother. In 2002, after his grandmother died, his mother came to Krugersdorp to her maternal aunt and uncle, the Ls, who are the present caregivers of the minor child, and left the minor child in their care. PS accompanied NL to the police station where an D affidavit was attested to in order to enable NL to receive a child support grant. Over the years she returned to visit the minor child. However, in 2007 she became ill, and on 18 June 2007 she passed away. She was never legally married, and did not appoint a guardian to the minor child in the event of her death, nor did she disclose who the father of the minor child was, nor did anyone acknowledge paternity. E

[9] It is common cause that the Ls cared for and protected the minor child since he was a baby, providing for his emotional, psychological, physical and economic needs. They have done so from their meagre earnings since 2002. It is not in dispute that their present financial F circumstances are dire. According to the social workers' report the minor child has developed a secure and positive relationship with the Ls. Ms Kriel screened the Ls and found them to be suitable foster parents. Her report concluded that SS was a child in need of care and protection in terms of s 150(1)(a) of the Children's Act. She recommended that he be placed in foster care with the Ls in terms of s 156 of the Act, and that a G foster care grant be paid to the Ls, and that the Department of Health and Social Development render supervision services to the family.

[10] This appeal centres on the proper interpretation of s 150(1)(a) of the Children's Act. It is settled law that in the interpretation of statutes H a purposive approach must be adopted, enquiring into the purpose for which the provision was enacted, and interpreting the provisions in cases of doubt in such a manner as to advance and give effect to the purpose of the legislation. According to the Parliamentary Monitoring Group, the Children's Act of 2005 was intended to achieve the following:

'Overall, the Children's Act extended the responsibility of the State, and I regulated a wider range of services than those covered by the Childcare Act. In practice, this created the need for greater State capacity for the

Saldulker J (Potgieter AJ concurring)

A registration and monitoring of a range of new services, as well as a responsibility on the State to create such new services where they did not exist. . . . Chapter 9 dealt with the child in need of care and protection, provided for the identification of such children and provided for actions to be taken with regard to children.'

B [11] Section 150(1)(a) of the Children's Act reads as follows:

'(A) child is in need of care and protection if the child has been abandoned or orphaned and is without any visible means of support.'

Axiomatically any interpretation of s 150(1)(a) must be in keeping with the constitutional rights of children as embodied in the Constitution. C Section 27(1)(c) of the Constitution provides that —

'everyone has the right to have access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance'.

D Section 28(2) of the Constitution provides that 'a child's best interests are of paramount importance in every matter concerning the child'.

[12] At the outset the commissioner regarded the minor child's case as 'a test case' because of numerous factors, the main one being the different interpretations of s 150(1)(a) by presiding officers generally. E The commissioner rejected the social workers' report where they had after an investigation concluded that the minor child was a child in need of care and protection as described in s 150(1) of the Children's Act, in that the child 'has been abandoned or orphaned and is without any visible means of support'.

F [13] The commissioner relied on s 32 [2] of the Children's Act in finding that there was no need for the Ls to apply for a foster care order because they were already taking care of the minor child, and thus the minor child was not in need of care as envisaged in the Children's Act. According to the commissioner there was no need to legalise a placement which was a family-related one because it was catered for by s 32. In my view the commissioner misconstrued the meaning of s 32 of the Children's G Act.

[14] The children's court found that —

'the main reason for the inquiry is to alleviate the parties' financial H position by a foster care order and receipt of a foster grant'.

Saldulker J (Potgieter AJ concurring)

Much reliance was placed on s 32, which makes provision for the A voluntary care of children by persons who have no parental responsibility and rights in respect of the child. Such a person may or may not be a relative of the...