Stewart v Member of the Executive Council Department for Social Development, Eastern Cape Province

• Jurisdiction: South Africa
• Judge: SM Mbenenge J
• Judgment Date: 04 October 2016
• Docket Number: 628/2013
• Court: Eastern Cape Division
• Hearing Date: 22 September 2016
• Citation: 2016 JDR 1830 (ECB)

Mbenenge J:

Introduction

[1]

This application started off during October 2013 as a quest founded on the provisions of the Promotion of Administrative Justice Act 3 of 2000 for an order setting aside the alleged failure by the second and/or third respondent(s) to investigate and compile a report on the care and circumstances of a minor child, Annoleen Sauls (Annoleen), for purposes of determining whether she was a child in need of care and protection, and for the grant of other relief ancillary or consequential thereto. Approximately 6 months thereafter, during April 2014, the Children's Court, Alice

2016 JDR 1830 p2

Mbenenge J

(Children's Court) found Annoleen to be in need of care and the applicant to be a suitable foster parent. A foster care grant was also recommended, so much so that the applicant's concerns got to be allayed, resulting in the parties resolving their differences, save the question of costs.

[2]

Because a judgment for costs involves a decision on the merits, and a claim for costs cannot stand alone, [1] it has become necessary to consider the merits of the application with a view to determining who as between the applicant and the respondents would have been successful had the matter proceeded to its logical conclusion. To that end, I deal first with the relevant statutory background and, thereafter, the factual matrix of the case.

Statutory background

[3]

In terms of section 154 of the Children's Act 38 of 2005 (the Act) a person under whose care a child placed in temporary safe custody may, if she/he, on reasonable grounds, believes that the child is in need of care, refer the child to a designated social worker for investigation contemplated in section 155(2) of the Act.

[4]

Section 155(2) of the Act casts a duty upon a designated social worker, before a child believed to be in need of care and protection as contemplated by section 154 of the Act is brought before a children's court for a decision (whether the child is in fact in need of care), to investigate the matter and within 90 days compile a report in the prescribed manner on whether the child is in need of care and protection.

[5]

If the court finds that the child is in need of care and protection, the court may make an appropriate order in terms of section 156. [2]

[6]

The court may, in respect of a child in need of care and protection, make any order which is in the best interest of the child, including an order, if the child has no

2016 JDR 1830 p3

Mbenenge J

parent or care-giver, that the child be placed in foster care with a suitable foster parent. [3]

Factual background

[7]

The order of 7 April 2014 referred to in paragraph [1] above was granted on the strength of a "SOCIAL WORKER'S REPORT AND NECESSARY DOCUMENTS SUBMITTED", ostensibly in terms of section 155 (7) of the Act, in so far as it found Annoleen to be a child "in need of care" and, ostensibly in terms of section 156(1)(e)(i) of the Act, in so far as it found the applicant to be a suitable foster parent. The circumstances in which the order was granted are not altogether clear. [4]

[8]

It is common cause or at least not in dispute that Annoleen's biological mother, the late Mieta Sauls (the deceased), passed away on 14 November 2007. Annoleen is on record as having not had any form of relationship with her biological father, whose whereabouts are, in any event, unknown. When she was still alive, the deceased raised Annoleen as a single parent and as such was responsible for her care, maintenance and support. Annoleen was about seven years old when the deceased expired, and ended up being given care by her maternal aunt, the applicant.

[9]

During 2012 the applicant solicited the assistance of the Social Worker, Alice towards the care of Annoleen. There is a dispute of fact on the papers regarding the precise nature of the assistance the applicant sought. According to the applicant she lodged an application for a foster care grant in respect of Annoleen, during April 2012, whilst according to the respondents the applicant never attended upon the Alice Social Worker's office during April 2012, but did so in May 2012 with a view to seeking assistance from the Social Worker concerning Annoleen's academic abilities and progress at school, and not otherwise.

[10]

According to the applicant, when it became clear that she was getting no joy, because the social worker concerned had directed her to search for Annoleen's biological father which was well neigh impossible for her to achieve, and after

2016 JDR 1830 p4

Mbenenge J

demands made by her attorney urging the social worker to compile a report of her investigations did not yield positive results, she resorted to launching the instant application.

[11]

The letter penned by the applicant's attorneys of record predating the launch of the application (the letter is dated 17 September 2013) and allegedly transmitted to, inter alia, the first respondent, captures the essence of the applicant's complaint in the following terms:

"We have to advise that we are acting for and on behalf of our client, MS Helen Stewart. Our instructions are to advise that our client is the aunt and care giver to Annoleen Sauls, a fourteen year old minor whose biological mother, Miete Sauls passed away on the 14th of November 2007. We are informed that at all material times hereto, the deceased was single parent who was solely responsible for the care, and support of the minor child.

According to our instructions, our client has no...