ARTICLES

Section 14 of the Children's Act 38 of 2005 and the child's capacity to litigate

Artikel 14 van die Kinderwet 38 van 2005 en die verskyningsbevoegdheid van 'n kind

T Boezaart^I; DW de Bruin^II

^IBA LLB LLD Professor and Head, Department of Private Law, University of Pretoria
^IIBA LLB LLM LLD Presiding Officer, Children S Court, Heidelberg

OPSOMMING

Artikel 14 van die Kinderwet bepaal dat elke kind die reg het om 'n saak na 'n hof te bring asook om bygestaan te word om 'n saak aldus te bring. In hierdie bydrae word artikel 14 en die invloed/gevolge daarvan op 'n kind se verskyningsbevoegdheid ondersoek. Met die oog hierop word die gemeenregtelike beperkings op 'n infans en 'n minderjarige se verskyningsbevoegdheid oorweeg. Daar word ook aangedui hoe hierdie beperkings in die verlede gehanteer is en hoe die rol van byvoorbeeld die kurator ad litem in regspraak aangewend en ontwikkel is. Die Grondwet het in artikel 28(1)(h) vir kinders 'n reg op regsvertenwoordiging in siviele sake op staatskoste beding, mits dit andersins tot wesenlike onreg sou lei. Die regspraak het daartoe bygedra dat die onderskeie rolle van 'n kurator ad litem en 'n artikel 28(1)(h)-regsverteenwoordiger uitgeklaar is. Alhoewel artikel 14, veral in samewerking met artikel 10, 'n bydrae lewer om kinders se deelname in die regsproses te verseker, word aan die hand gedoen dat artikel 14 nie met die gemeenregtelike beperkings op 'n kind se verskyningsbevoegdheid weggedoen het nie.

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* We express our gratitude to Professor Johan van der Vyver who read the manuscript and who, through his suggestions and comments, contributed very meaningfully to its refinement. However, we take full responsibility for the views expressed herein.
1 38 of 2005.
2 The introductory part of the long title of the Children's Act 38 of 2005, hereafter the Children's Act. See also s 2(b) Children's Act.
3 S 34 Constitution of the Republic of South Africa, 1996, hereafter the Constitution. This section deals with the right of everyone "to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum". See Davel "General principles" in Commentary on the Children's Act(eds Davel & Skelton)(2007) 2-19.         [ Links ]
4 S 28(1)(h) Constitution.
5 Minors below the age of seven years.
6 With effect from 2007-07-01 by proclamation published in GG 30030 of 2007-06-29.
7 See De Bruin Child Participation and Representation in Legal Matters (LLD thesis 2010 UP) 151, 288 et seq.
8 Voet 2 4 4. However, it must be borne in mind that "minor" sometimes refers to all children, thus including infantes and sometimes in the narrow sense, only referring to children aged seven and above.
9 Voet 2 4 4, 26 7 12. This incapacity of the infans originated from Roman law and was incorporated in common law as part of the Roman law influence in Holland. Compare De Groot 1 8 4; Voet 2 4 4; Van der Keessel Theses Selectae 127, Praelectiones 1 8 4.
10 Voet 2 4 4; Guardian National Insurance Co Ltd v Van Gool 1992 4 SA 61 (A) 66G. Compare Hahlo & Kahn The Union of South Africa: The Development of its Laws and Constitution (1960) 376 n 48; Hosten et alIntroduction to South African Law and Legal Theory (1995) 567; Van der Vyver "Verskyningsbevoegdheid van minderjariges" 1979 THRHR 129 130-131; Van der Vyver & Joubert Persone- en Familiereg (1991) 174 who refer to an infans as "volkome selfverskyningsonbevoeg".
11 De Groot 1 4 1, 1 6 1, 1 7 8. He confirms at 1 8 4 that all legal proceedings must be conducted in the name of the guardian. Compare also Voet 2 4 4, 5 1 11, 26 7 12; Van Leeuwen Rooms-Hollands Recht 5 3 5; Van der Keessel Theses Selectae 127, Praelectiones 1 4 1 and 1 8 4; Van der Linden Koopmans Handboek 3 2 2.
12 Spiro Parent and Child(1985) 199.
13 Voet 2 4 4 informs that an infanscannot in any way issue summons or be summoned but is represented by his or her parents or guardians.
14 Van der Vyver 1979 THRHR 131; Van der Vyver & Joubert 174.
15 Voet 2 4 4; Van der Keessel Theses Selectae127, Praelectiones 1 8 4.
16 Ie "minor" in the narrow sense: children aged seven or more but below the age of majority. See n 7 above.
17 De Groot 1 4 1, 1 8 4. Compare Van der Vyver 1979 THRHR 131; Spiro 202 et seq.
18 Van Rooyen v Werner(1892) 9 SC 425 430; Lasersohn v Olivier1962 1 SA 566 (T); Wolman v Wolman1963 2 SA 459A-B; President Insurance Co Ltd v Yu Kwam 1963 3 SA 766 (A) 772C; Jones v Santam Bpk 1965 2 SA 542 (A) 546D; O'Linsky v Prinsloo 1976 4 SA 843 (O) 846-847; Weber v Santam Versekeringsmaatskappy Bpk 1983 1 SA 381 (A) 386E-F.
19 De Groot 1 4 1 mentions the exception in criminal matters where minors had to appear in court themselves.
20 De Groot 1 4 1 explains that minors do not have the capacity to litigate because they do not care for themselves or manage their own affairs. See also De Groot 1 6 1, 1 7 8, 1 8 4; Groenewegen De Leg Abr3 6 3 2; Van Leeuwen 5 3 5. Voet (2 4 4) mentions that minors may not be summoned without the authority of a guardian. He adds (5 1 11) that a minor ought not to institute proceedings without a guardian and explains (26 7 12) that a guardian's duty is to appear on behalf of his ward in legal proceedings, whether he institutes an action on behalf of a minor or defends him when the minor has been sued by another. See also Van der Keessel Theses Selectae 127 where he explains that a minor could not appear in court either as plaintiff or defendant without the assistance of his or her guardian. In Praelectiones 1 8 4 he comments that the principles in law did not allow whatsoever that minors who institute proceedings or defend such proceedings could do so in their own name. Compare Van der Linden 1 5 5 and 3 2 2 where he mentions that if an action is to be instituted by a minor, it must be brought in the name of the guardian and if one wishes to sue a minor, the guardian must be summoned.
21 The "age of discretion" mentioned in Sharp v Dales 1935 NPD 392 396 ostensibly refers to an age when the minor knows what is being done on his or her behalf. In Sharp v Dales the child was fourteen years old.
22 Compare Sharp v Dales 1935 NPD 392 396; Mokhesi v Demas 1951 2 SA 502 (T).
23 Art 12(2) United Nations Convention on the Rights of the Child, 1989 (CRC).
24 Albeit not the only opportunity, see s 28(1)(h) Constitution.
25 The only requirement is jurisdiction of the court. The jurisdictional aspect of the children's court is dealt with in s 45 Children's Act.
26 S 18(3)(b) Children's Act.
27 Considered by Heaton Law of Persons (2008) 92.
28 90.
29 90, 92.
30 Boezaart "Child law, the child and South African private law" in Child law in South Africa (ed Boezaart)(2009) 22-23 agrees that although legislature intended that every child should have access to the courts, it is doubted that this intention included supplementing the infans s capacity to litigate.
31 Except if the de minimis non curat lex principle applies.
32 Op cit 90.
33 The High Court has inherent jurisdiction over all children as upper guardian.
34 Heaton 89 n 44. Because the infans has no locus standi in iudicio, the parent, guardian or curator ad litem institutes the action on behalf of the infans and thereby complies with the aim of s 14 of the Children's Act that "every child has the right to bring and to be assisted in bringing a matter to a court".
35 Compare Centre for Child Law v Minister of Home Affairs 2005 6 SA 50 (T) where the court appointed a curator ad litem to safeguard and investigate the interests of the thirteen children who were held in detention at Dyambo. The court later appointed the same legal representative in terms of s 28(1)(h) of the Constitution so as to allow the wishes and desires of the children to be placed before court (59A-B). See also discussion by Sloth-Nielsen "Realising children's rights to legal representation and to be heard in judicial proceedings: An update" 2008 SAJHR 500-501.
36 Investigating Directorate: Serious Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motors Distributors (Pty) Ltd v Smit 2001 1 SA 545 (CC) par 20 - 26.
37 S 39(2) Constitution provides that "[w]hen interpreting any legislation, and when developing the common law, every court ... must promote the spirit, purport and objects of the Bill of Rights". See Investigating Directorate: Serious Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motors Distributors (Pty) Ltd v Smit2001 1 SA 545 (CC) par 20.
38 Rautenbach "Introduction to the Bill of Rights" in Bill of Rights Compendium (eds Mokgoro & Tlakula)(1998) 1A19 mentions that section 39(2) at all times applies to the interpretation of all legislation and the determination of the contents of all rules of common law and not only when considering their constitutionality.
39 Whether directly or indirectly. S 8(3) Constitution states that when applying the provisions of the Bill of Rights in order to give effect to a right in the Bill of Rights, a court must apply or if necessary develop the common law to the extent that legislation does not give effect to that right.
40 Heaton 92 doubts whether it was the intention of legislature.
41 S 22 Children's Act read with regs 7, 8 General Regulations Regarding Children, 2010 contained in GN R261 in GG 33076 of 2010-04-01 and Form 5 issued in terms of Annexure A General Regulations Regarding Children.
42 S 22(6)(a)(ii), 22(6)(b)(ii) Children's Act. See Heaton "Parental responsibilities and rights" in Commentary on the Children's Act (eds Davel & Skelton)(2007) 3-16 on which court should be approached for permission to amend or terminate the agreement.
43 See par 3 above.
44 Du Toit in "Legal representation of children" in Child Law in South Africa(ed Boezaart)(2009) 106 regards it as implicit that in order to bring a matter to court, a child will need the assistance of a legal practitioner.
45 S 28(3)(c) Children's Act.
46 S 34(5)(b) Children's Act.
47 See par 2 2 above.
48 Whether the minor is assisted by his or her parent or guardian in litigation the result is the same. It is the minor who is party to the suit and not the parent or guardian. Compare in general Van der Vyver & Joubert 176-177; Cockrell "Capacity to litigate" in Boberg's Law of Persons and the Family (eds Van Heerden, Cockrell & Keightley)(1999) 897-900 and authority cited. Boezaart Law of Persons (2010) 88 suggests that the two forms, representation and assistance, are interchangeable. See also Heaton 112-113.
49 Legal Aid Board in re Four Children (512/10) [2011] ZASCA 39 (2011-03-29) par 12. An "ad hoc guardian" as explained in Martin v Road Accident Fund 2000 2 SA 1023 (WLD) 1036I.
50 Davel "The child's right to legal representation in divorce proceedings" in Gedenkbundel vir JMT Labuschagne(ed Nagel)(2006) 25; Cockrell 902.
51 Swart v Muller (1909) 19 CTR 475; Yu Kwam v President Insurance Co Ltd 1963 1 SA 66 (T); Wolman v Wolman1963 2 SA 452 (A) 459; Mort v Henry Shields-Chiat 20011 SA 464 (C); Ex parte Visser: in re Khoza 2001 3 SA 524 (T); Laerskool Middelburg v Departementshoof, Mpumalanga Departement van Onderwys2003 4 SA 160 (T) 175H-J. The court is reluctant to appoint a curator ad litem where the minor's guardian is alive and available as mentioned in Ex parte Oppel 2002 5 SA 125 (C) 128I-J where the court indicated that only in exceptional cases will a curator ad litembe appointed.
52 Curator ad litem Letterstedt v Executors of Letterstedt 1874 Buch 42; Wolman v Wolman 1963 2 SA 452 (A) 459B-D; B v E 1992 3 SA 438 (T). See Martin NO v Road Accident Fund2000 2 SA 1023 (WLD) 1035A and 1035C.
53 As was the case in Curator ad litem of Letterstedt v Executors of Letterstedt 1874 Buch 42 45; Ex parte Bloy1984 2 410 (D). Compare Cockrell 902; Heaton 112-113.
54 Ex parte Oppel2002 5 SA 125 (C) 131. This can be regarded as a form of conflict of interests between the parent or guardian and the child. See further Van der Vyver & Joubert 178; Cockrell 903 n 12.
55 The curator ad litem will generally be an advocate whose function will be to present legal argument in favour of the minor: Martin v Road Accident Fund 2000 2 SA 1023 (WLD) 1035B-C and 1036B. See Kassan How can the voice of a child be adequately heard in family law proceedings (LLM dissertation 2004 UWC) 48; Sloth-Nielsen "Realising children's rights to legal representation and to be heard in judicial proceedings: an update" 2008 SAJHR495 500-502.
56 Eg Martin v Road Accident Fund 2000 2 SA 1023 (WLD) 1035; Du Toit v Minister of Welfare and Population Development 2003 2 SA 198 (CC) par 3 201E/F-202A-B; Centre for Child Law v Minister of Home Affairs 2005 6 SA 50 (T).
57 2003 2 SA 198 (CC).
58 Par 3 201F/G-G/H where the court held that "where the interests of children are at stake, it is important that their interests are fully aired before the Court so as to avoid substantial injustice to them ... Where there is risk of injustice, a court is obliged to appoint a curator to represent the interests of children". Skweyiya AJ observed that this obligation "flows from the provisions of s 28(1)(h) of the Constitution". Sloth-Nielsen 2008 SAJHR 501 rightly questions whether a child's legal representative fulfils or should equate to, a curator ad litem. The legal representative does not represent the views of "non-clients" not before court, such as children generally, nor is it clear that all the foreign children as clients in the Centre for Child Lawcase would necessarily have given their legal representative the same instructions.
59 2008 3 SA 232 (CC).
60 Par 6 (240) read with par 30 (250). Sloth-Nielsen 2008 SAJHR 501 mentions that the court did not explicitly consider whether the curatorad litem's appointment afforded sufficient representation of the children's views as opposed to the children's interests. In par 36 (252-253) of the judgment it is seen that the court did not indicate that the appointment of a curatorad litem is not called for when considering the best interests of the child in a criminal matter such as where the best interests of the child are accounted for when considering an appropriate sentence for the child's parent.
61 Applications for venia agendi'where minors could approach the High Court for an order to institute a civil action may in exceptional circumstances still occur but it is doubtful seeing that the age of majority has been lowered. However, the requirement is that the minor has attained an "age of discretion". In the majority of the applications the applicants were close to majority. See in this regard In re Cachet(1898) 15 SC 5 where the petitioner was nineteen years old, but the court refused the application. (The age of majority was twenty one at that stage.) In Mare v Mare 1910 CPD 437 the age of the petitioner was not indicated. The court held (438) that the law regarding venia agendihad become obsolete. However, in Ex parte Goldman 1960 1 SA 89 (D) the court granted an application for venia agendito a twenty-year-old man who was an orphan. (The age of majority was still twenty one.) See further Van der Vyver 1979 THRHR 133; Cockrell 904-905 and authority cited; Himonga in Wille s Principles of South African Law (gen ed Du Bois)(2010) 188; Heaton 113.
62 Govender v Amurtham1979 3 SA 358 (N) 362B-C. At 362A-B the court held that an order made against an unmarried minor father is not invalid because the minor had no locus standi.
63 Govender v Amurtham1979 3 SA 358 (N) 362A-B.
64 Application for substitute consent can be brought to the children's court or the High Court as upper guardian of minors. Applications brought to the children's court are governed by the provisions of s 25(1) Marriage Act 25 of 1961. If the parent, guardian or children's court refuses consent to the marriage of a minor, the minor may on application apply for consent to be granted by a judge of the High Court. See in this regard Lalla v Lalla1973 2 SA 561 (D) 563A-B where the court held that "the very nature of the proceedings disqualifies [the minor] from such assistance as is normally given"; De Greeff v De Greeff 1982 1 SA 882 (O); B v B 1983 1 SA 496 (N) where a seventeen-year-old girl successfully brought an application for consent to marry. Compare Van der Vyver & Joubert 179 who opine that a minor ought to have capacity to litigate in all cases where application is made to substitute parental consent with that of the High Court as upper guardian of all minors. The phrase "parental substitution" includes that of a person who has received specific parental responsibilities and rights in terms of s 18(1) Children's Act to consent, in terms of s 18(3)(c)(i) Children's Act, to a child's marriage.
65 Reasons abound, eg the parent could have disappeared or has left the country and cannot be traced or is in a coma or is suffering from a mental illness. An application in terms of s 25(1) Marriage Act 25 of 1961 will only be considered by the children's court of the district where the minor is resident if the minor has no parent or is for any good reason unable to obtain the consent of the minor's parents or guardian. The children's court may refuse consent. S 25(1) Marriage Act provides that if the commissioner of child welfare of the district or area in which the minor is resident is satisfied after proper inquiry that the minor has no parent or guardian or is for any good reason unable to obtain the consent of his or her parents or guardian to enter into a marriage, such commissioner of child welfare may at his or her discretion grant written consent to such child to marry a specified person. A commissioner of child welfare may not grant consent if any or both parents or guardian of the child refuse to grant consent to the marriage. A minor may not bypass the children's court and approach the High Court in terms of s 25(4) Marriage Act: see Ex parte Visick1968 1 SA 151 (D) 154; Ex parte Balchund 1991 1 SA 479 (D). Compare also Van der Vyver & Joubert 510; Sinclair assisted by Heaton The Law of Marriage(1996) 367 381; Heaton 106-107. Although the Child Care Act 74 of 1983 has been repealed with effect from 1 April 2010, s 25 Marriage Act 25 of 1961 still applies to the children's court and reference to the commissioner of child welfare and Child Care Act should be substituted with children's court and Children's Act.
66 S 25(4) Marriage Act 25 of 1961 allows for such refusal to consent to the marriage of a minor to be considered by a judge of the High Court on application.
67 Ss 25(1), (4) Marriage Act 25 of 1961. Compare Allcock v Allcock 1969 1 SA 427 (N) 429 where the court explained what s 25(4) required of a judge to apply his mind to: (i) whether the parental refusal is "without adequate reason" and (ii) whether it is contrary to the interests of the minor. Unless he or she is of the opinion both that the parental refusal is without adequate reason and that such refusal is contrary to the interests of the minor, he or she shall not grant consent to the proposed marriage. See also Ex parte F 1963 1 PH B9 (N); Coetzee v Van Tonder 1965 2 SA 239 (O); Kruger v Fourie 1969 4 SA 469 (O); Jinnah v Laattoe1981 1 SA 432; Ward v Ward1982 4) SA 262 (D); Lala vLalla 1973 2) SA 561 (D) 563A-B.
68 See Ex parte Nader (an unreported decision discussed by Smit "Ex parte Nader 1975 (O)" 1976 THRHR 84) where a third party filed an application for consent to the High Court on behalf of a minor who had to undergo an appendectomy. The required consent was granted by the court. The court did not enquire into whether the applicant had the necessary competency to represent the minor. In Yu Kwam v President Insurance Co Ltd 1963 1 SA 66 (T) the biological father had instituted an action on behalf of his minor child under the mistaken impression that he was the legal guardian of his child. Compare Van der Vyver & Joubert 179; Cockrell 906.
69 As was the case with Vista University, Bloemfontein Campus v Students Representative Council, Vista University1998 4 SA 102 (O) where the court assumed the responsibility for assisting all the minors who were not assisted by their guardians.
70 Yu Kwam v President Insurance Co Ltd 1963 1 SA 66 (T) 69B. As the father, acting bona fide, had such a close relationship with the minor, the court without any hesitation appointed a curatorad litem and granted permission to amend the pleadings (69E-F).
71 Boezaart (2010) 90 adds that this aligns with the principle that a minor acting without authority can improve but not burden his or her position. The general rule in South African law is that minors cannot incur liability without the assistance of their parent or guardian. See Cockrell 906 who informs, with reference to Voet 5 1 11, that it is only a judgment against the minor that is void; a judgment in the minors favour is valid and enforceable against the other party. See too Spiro 201-202; Van der Vyver 1979 THRHR 129 141; Van der Vyver & Joubert 1 82-183.
72 Emancipation was received from Roman-Dutch law. Compare Riesle and Rombach v McMullin (1907) 10 HCG 381 386; De Villiers v Liebenberg (1907) 17 CTR 867 869; Le Grange v Mostert(1909) 26 SC 321; Dickens v Daley 1956 2 SA 11 (N) 13D-E; Ex parte Van den Heever 1969 3 SA 96 (EC) 99A-B; Grand Prix Motors WP (Pty) Ltd v Swart1976 3 SA 221 (C) 224A-B; Ex parte Botes1978 2 SA 400 (O) 402B; Sesing v Minister of Police 1978 4 SA 742 (W) 745H-746A. See also Heaton 115; Himonga 191.
73 1 944 TPD 364 366.
74 1978 4 SA 742 (W) 745, 746C. Cockrell "The Law of Persons and the Bill of Rights" in Bill of Rights Compendium(eds Mokgoro & Tlakula)(1996) 3E22 in a sound criticism of the judgment based on the Constitution questions whether s 28(2) Constitution might now render a different result on identical facts. His conclusion is that the best interests of the child (based on the paramountcy of s 28(2) Constitution) should not mandate a differential application of settled rules of law in an effort to promote short-term interests of the child. Compare Boezaart (2010) 80.
75 The court also stated that the minor would not be liable on the agreement if the parent retracted the emancipation (366).
76 See Van der Vyver & Joubert 155; Kruger & Robinson "The legal status of children and young persons" in The Law of Childrenand Young Persons in South Africa (ed Robinson)(1997) 28-29 support this viewpoint. See also Cockrell 908-910 nn 29, 30; Heaton 117; Himonga 192 n 203.
77 Cairncross v De Vos(1876) 6 Buch 5 where De Villiers CJ said that it had been proved that a eighteen-year-old had been emancipated and acquired a "persona standi in judicio"; Orkin v Lyons1908 TS 164 where the court held that a seventeen-year-old had been emancipated and assumed that he had locus standi in iudicio; Dama v Bera 1910 TPD 928 where the defence of locus standi in iudiciowas specifically raised, the court assumed locus standi in iudicio and found that the respondent had been emancipated. See also Venter v De Burghersdorp Stores1915 CPD 252; Dickens v Daley1956 2 SA 11 (N).
78 S 17 Children's Act repealed the Age of Majority Act 57 of 1972 as a whole and with it the possibility of applying for an order to be declared a major. In the majority of cases involving tacit emancipation the minors alleged to have been emancipated were older than eighteen years, with the exception of Steenkamp v Kamfer 1914 CPD 877 and Pleat v Van Staden 1921 OPD 91 where the minors were seventeen years old and Ahmed v Coovadia 1944 TPD 364 where the minor was fifteen-and-a-half years old. See also Cockrell 473; Heaton 115.
79 S 28 Children's Act provides for the termination, extension, suspension or restriction of any or all parental responsibilities and rights. The child in question may bring this application himself or herself, with the court's consent: s 28(3)(c) Children's Act.
80 Especially in child-headed households that are increasingly found in South Africa where a child does not have a parent or guardian. Does this mean that the child does not have a remedy in law? It is submitted that s 14 should be applied and the child may approach the Legal Aid Board for assistance, especially in view of the decision in Legal Aid Board v R2009 2 SA 262 (D).
81 [2005] JOL 14218 (T).
82 Two girls aged fourteen and twelve years of age.
83 Par 8. The mother refused the children's father contact with his daughters because of his alleged violent behaviour. The court ordered the parents and children to submit themselves to therapy to try and normalise family relationships. However, the children refused to submit to treatment.
84 Par 8 with reference to Re Children Aid Society of Winnipeg and AM and LC Re RAM 7 CRR where the court held that in a matter dealing with the guardianship of a child, the child can be joined as a party in order to allow the child to appeal an adverse order affecting the child. Furthermore, that this gives proper effect to the provisions of section 28(1)(h) Constitution.
85 Par 5. De Villiers J indicated that he was of the view that it would be better for the State Attorney to appoint a legal practitioner in terms of s 28(1)(h) Constitution. Following this suggestion, the State Attorney appointed Adv Sceales as representative of the children.
86 Par 6.
87 Par 7 and 8 where the court remarked that the appointed legal practitioner will be best equipped to present the case for the children if he can do so independently from both parents. See also Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC) par 53 (787H-788A/B) where Sachs J remarked that the court has not had the assistance of a curator ad litem to present the interests of the children. In the High Court it was accepted that the state would represent the interests of the children which the court found "unfortunate". The children, many of whom would have been in their late teens and capable of expressing their views, were not given that opportunity. The court made the very important remark that "[a]lthough both the State and the parents were in a position to speak on their [the children's] behalf, neither was able to speak in their name". This view was reaffirmed in Du Toit v Minister of Welfare and Population Development 2003 2 SA 198 (CC) par 3 (201E/F-202A-B) by Skweyiya AJ; see n 57 above.
88 "[E]veryone" in s 34 Constitution includes a child and s 14 Children's Act transmits this right to children in the Children's Act. S 34 Constitution provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court, or where appropriate, another independent and impartial tribunal or forum. Compare Davel (2007) 2-19; Heaton 89.
89 Art 12(1) CRC provides that states parties are obliged to ensure that children who are capable of forming their own views are given the opportunity to express those views in all matters affecting them. Furthermore, the views of children must be considered in accordance with the age and maturity of those children. Art 12(2) CRC enables state parties to enact procedural rules obliging the participation of children in any matter affecting them but not to restrict the participation of children. Compare Van Bueren The International Law on the Rights of the Child (1995) 139; Lücker-Babel "The right of the child to express views and to be heard: An attempt to interpret article 12 of the UN Convention on the Rights of the Child" 1995 1JCR391 397-398.
90 African Charter on the Rights and Welfare of the Child OAU Doc CAB/LEG/ 24.9/49 (1990) (ACRWC).
91 Art 4(2) ACRWC provides that children who are capable of forming their own views have the right to express those views freely in all judicial or administrative proceedings affecting them. Davel (2007) 2-14 comments that the right of the child to be heard as provided in art 4(2) ACRWC may at first glance appear to be more restricted than the scope of art 12 CRC. However, the ACRWC is specific with its provision that the child may be heard as a party to the proceedings either directly or through an impartial representative. The importance of this provision is found in the determination of how the child is to be heard. See further Davel (2006) 20-21.
92 S 28(1)(h) Constitution does not refer directly to the child's right of participation but implies such a right in civil proceedings. The same argument prevails for the child's right of access to a court. It may be argued that s 28(1)(h) Constitution implies such right of access for the child. Therefore, it is submitted that both sections 10 and 14 align with s 28(1)(h) Constitution. Davel (2007) 2-23 points out that the limitation of "substantial injustice" in s 28(1)(h) Constitution is not found in s 14 Children's Act. The word "assist" further enhances the participatory right of the child.
93 Art 12(2) CRC provides for the participation of a child and the representation of the child in judicial proceedings. Art 4(2) ACRWC has a similar though different worded provision. The provision that the child "shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child" is the execution of the assurance given in art 12(1) CRC and therefore the precursor "[f]or this purpose". Art 37(d) CRC provides that every child deprived of his or her liberty shall have the right to "prompt access to legal and other appropriate assistance" as well as the right to challenge the legality of such deprivation of liberty before a court or other competent, independent and impartial authority. Where a child is removed and placed in temporary safe care without a court order in terms of s 152 Children's Act, the removal is to be "reviewed" by the court as soon as possible. The deprivation of the child's liberty in a children's court matter is no less traumatic than the deprivation of a child's liberty in a criminal matter. Yet in a criminal matter art 37(d) CRC comes to the child's rescue with prompt access to legal assistance. However, in children's court proceedings the presiding officer decides, in terms of s 55 Children's Act, if it would be in the best interests of the child to have legal representation and then refers the matter to Legal Aid South Africa who uses the substantial injustice criterion.
94 A similar provision is found with the words "[i]n all judicial or administrative proceedings affecting a child ... opportunity shall be provided for the ... child to be heard ... as a party to the proceedings". Kassan 22 agrees that allowing the child as a party to the proceedings "creates the basis for the child to be included as third parties (with representation) in divorce proceedings in addition to their parents being parties". The application goes further than divorce proceedings and indeed includes all proceedings where the child has a major interest as a party, eg application for protection by a parent in domestic violence, maintenance and care and contact disputes. S 4(4) Domestic Violence Act 116 of 1998 provides that "[n]otwithstanding the provisions of any other law, any minor ... may apply to the court for a protection order without the assistance of a parent, guardian or any other person". Therefore, any child who is of such age, maturity and stage of development may apply for a protection order and has the right to legal representation at state expense if substantial injustice would otherwise result.
95 See MEC for Education, Kwazulu-Natal v Pillay2008 1 SA 474 (CC) par 56 (494 D/E-G). This is in line with the provisions of art 12(2) CRC and especially art 4(2) ACRWC, both of which emphasise the participation through a representative, which may be a legal representative. Art 4(2) ACRWC creates a platform for children to be granted legal representation as a party to proceedings instituted by their parents such as divorce proceedings (Kassan 22). Davel (2007) 2-23 indicates that the word "assisted" in s 14 Children's Act has a more extensive application than "representation" as found in s 28(1)(h) Constitution. Sloth-Nielsen 2008 SAJHR 500 draws an important distinction between the appointment of a curator ad litem representing the interests of the child as opposed to the views of the child himself or herself.
96 S 14 refers to "every child" and places no limitation on the right of access to court.
97 S 28(1)(h) Constitution provides that "[e]very child has the right to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result". This is the view of Davel (2007) 2-20. However, Heaton 89 does not agree and argues that assistance does not necessarily mean that the child is entitled to legal representation. She takes this argument further (89 n 44) and comments that assistance is not the equivalent of legal representation and therefore it cannot be said that s 14 Children's Act links up with s 28(1)(h) Constitution. Assistance is a different concept from legal representation and refers to the conduct that is needed to supplement the minor's limited capacity to act or to litigate. This argument is difficult to implement when a child's guardian is withholding assistance from the child and the child wants to approach the court for a remedy. Eg the child wants to enforce his or her right to maintenance against the child's parents and not one of the parents is willing to assist in bringing the matter to court.
98 See Feldhaus Kinders se Konstitusionele Reg op Regsverteenwoordiging in Siviele Sake (LLM dissertation 2010 NWU) 79 for the view that s 14 is broad enough to include assistance by a social worker. See also n 106 below.
99 S 45(1) Children's Act.
100 S 45(1)(b) Children's Act.
101 B v S1995 3 SA 571 (A) 581I-582A/B where the court held that "[i]t is the child's right to have access, or to be spared access, that determines whether contact with the non-custodian parent will be granted".
102 S 14 Children's Act. See Bosman-Sadie & Corrie A Practical Approach to the Children's Act (2010) 30.
103 2009 2 SA 262 (D).
104 Par 20 (269G-H). This validates the view of Davel (2007) 2-24 that it should be possible for a child to apply directly to the Legal Aid Board for a legal representative in terms of s 14 Children's Act. The limitation found in s 28(1)(h) of "substantial injustice" does not apply in s 14. It would thus be possible for the child to be "assisted" by a curatorad litem if one of the established grounds in the South African law for the appointment of a curator ad litem are present. Du Toit 106 shares this view where she comments that it is implicit that in order to bring a matter to court a child will need the assistance of legal practitioners. See fn 43 above.
105 Par 3 (264E/F-F/G).
106 Par 4 (264F/G-G/H).
107 S 35(3) Constitution provides the right of every accused person (and this includes a child) to a fair trial and in par (g) the right to have a legal practitioner assigned to the accused person by the state at state expense, if substantial injustice would otherwise result. Compare further Bekink & Brand in Introduction to Child Law in South Africa (2000) 193 that s 28(1)(h) Constitution is an extension of s 35(3). See also Zaal & Skelton "Providing effective representation for children in a new Constitutional Era: Lawyers in the criminal and children's courts" 1998 SAJHR 541; De Waal, Currie & Erasmus The Bill of Rights Handbook (2001) 466; Kassan 36; Davel (2007) 2-20; Sloth-Nielsen 2008 SAJHR 500.
108 Eg Soller v G 2003 5 SA 430 (W); Ex parte Van Niekerk: In re Van Niekerk v Van Niekerk [2005] JOL 14218 (T); Centre for Child Law v Minister of Home Affairs 2005 6 SA 50 (T); Legal Aid Board v R 2009 2 SA 262 (D). Compare Kassan 36-37 who draws a comparison between s 28(1)(h) Constitution, art 12(2) CRC and art 4(2) ACRWC commenting that art 12(2) does not refer to a "legal representative" but a "representative" and art 4(2) an "impartial representative" whereas s 28(1)(h) Constitution refers to a "legal representative". However, the application is broader in s 28(1)(h) with reference to "every child" irrespective of the ability of the child to communicate his or her views. See further Davel (2007); Sloth-Nielsen 2008 SAJHR 495-496.
109 S 28(2) providing that "[a] child's best interests are of paramount importance in every matter concerning the child".
110 Similar to art 12 CRC or art 4(2) ACRWC.
111 Which prescribes that "[e]very child that is of such age, maturity and stage of development as to be able to participate in any matter concerning that child, has the right to participate in an appropriate way and views expressed by the child must be given due consideration".
112 Prescribing that "[e]very child has the right to bring, and to be assisted in bringing a matter to a court, provided that matter falls within the jurisdiction of that court".
113 The interim Constitution of the Republic of South Africa, 1993 did not contain a section granting children a right to legal representation in civil matters.
114 "Every child has the right to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result."
115 Par 3 above.
116 Davel (2006) 21 refers to the following issues that need to be addressed: What is the correct procedure relating to the assignment of a legal representative; who should make the assignment, for instance, is it the State Attorney or the Legal Aid Board; can a legal representative be assigned by the High Court; what constitutes "substantial injustice"; who decides whether "substantial injustice" will otherwise result; and according to which principles will this decision be made? Du Toit 101-102 also alludes to practical issues regarding the assigning of a legal representative for a child. She identifies three main issues that need to be considered, namely circumstances under which a child is entitled to a legal representative in terms of s 28(1)(h) Constitution, the implementation of the rights envisaged in terms of s 28(1)(h) and the scope and functions of the legal representative appointed in terms of s 28(1)(h) Constitution.
117 2003 5 SA 430 (W). This case is referred to for its impact on the assignment of a legal representative to a child in terms of s 28(1)(h) Constitution. However, the first step is the right to participation which serves as a gateway to the right of the child to legal representation in civil matters as set out in s 28(1)(h) Constitution, mindful of the fact that the application of s 28(1)(h) is broader than s 10 Children's Act as it applies to every child and not only those children who are of such age, maturity and stage of development as to be able to participate in an appropriate way.
118 The question of assigning a legal representative in terms of s 28(1)(h) was previously considered in the matter of Fitschen v Fitschen [1997] JOL 1612 (C). The application failed due to the court finding that substantial injustice would not result because the children's views were taken into consideration in reports of the psychologists and Family Advocate.
119 Par 3 (434B/C-D); Davel (2007) 2-20; Du Toit "Children" 2009 (1) Juta Quarterly Review 2 1, Du Toit 103-104, 107. In Ex parte Van Niekerk; In re
119 Van Niekerk v Van Niekerk [2005] JOL 14218 (T) the court granted an application assigning a legal representative in terms of s 28(1)(h) without discussing the application in detail, but in Soller's case s 28(1)(h) as well as the aim of the section was discussed in greater depth.
120 Par 7 (434G-H) where Satchwell J mentions that "few proceedings [are] of greater import to a child/young adult of K's age than those which determine the circumstances of his residence and family life, under whose authority he should live and how he should exercise the opportunity to enjoy and continue to develop a relationship with both living parents and his sibling". See also pars 44-48 (443A/B-444B/C).
121 Par 26 (438A/B-D/E) referring to s 28(1)(h) the court held that what is envisaged is "a 'legal practitioner' who would be an individual with knowledge of and experience of the law but also the ability to ascertain the views of a client [the child], present them with logic eloquence and argue the standpoint of the client in the face of doubt or opposition from an opposing party or a Court. Section 28(1)(h) ... [requires that] a child in civil proceedings may ... where substantial injustice would otherwise result, be given a voice. Such voice is exercised through the legal practitioner".
122 Parr 1-17.
123 The referral of a dispute between the two unmarried parents of the child regarding paternity for mediation in terms of 21(3) Children's Act; the registration of a parental responsibilities and rights agreement; input in terms of s 23(3)(a) Children's Act in the application for an order granting care of and contact with the child; an application in terms of s 28(3)(e) Children's Act for the termination, extension, suspension or restriction of parental responsibilities and rights; the preparation of a report and recommendations in terms of s 29(5)(a) Children's Act as juxtaposed with s 29(6) Children's Act regarding the appointment of a legal practitioner; involvement in major decisions involving the child in terms of s 31(1) Children's Act; involvement in terms of s 33(5)(a) Children's Act in the formulation of a parenting plan; involvement in the formalities of the family plan in terms of s 34(3)(b)(ii)(aa) Children's Act.
124 Par 20 (437B-C). From parr 20-29 (437B-438I/J) the court distinguishes between the functions of the Family Advocate and the s 28(1 )(h) legal practitioner to represent the child. Davel (2007) 2-21 n 7 briefly refers to a number of articles that have been written on the role of the office of the Family Advocate since its establishment in 1990 in terms of the Mediation in Certain Divorce Matters Act 24 of 1987 and explains the functions of the Family Advocate (2-21/2-22). See also De Ru "The value of recommendations made by the Family Advocate and expert witnesses in determining the best interests of the child: P v P 2007 5 SA 94 (SCA)" 2008 THRHR 698-705. De Ru concludes (705) that the importance of the decision is to be found in alerting the courts to the dangers of allowing Family Advocates and expert witnesses to take over the function of the court and the duty of the presiding officer. It may be added that the task of the court would be much easier when the child is also legally represented and the court is allowed to receive the views of the child objectively.
125 Par 8. The provision regarding "substantial injustice" in s 28(1)(h) Constitution is not mentioned in the corresponding art 12 CRC.
126 Art 12(2) CRC provides that the child be given the opportunity to be heard in any judicial and/or administrative proceedings affecting the child, either directly or through a representative or an appropriate body.
127 Par 8-10 (434-435) where Satchwell J discusses the significance of s 28(1)(h) with reference to substantial injustice and refers to Sloth-Nielsen & Van Heerden (1996 SAJHR 250) who voiced their concern over the lack of accommodating the child's views when a conflict of interests arises between parents and children in matters affecting children. This question has to a large degree been resolved with the provisions of ss 10 & 14 Children's Act.
128 Par 54 where the court observed that it is trite in family law that the best interests of each child is paramount in the custody and access arrangements of such child (now "care" and "contact" in terms of the Children's Act, s 1(1) definition of "care" and "contact" and subs (2). This section became operative from 2007-07-01). The wishes of the child, in the particular circumstances of the family had become the determining factor: par 56. See McCall v McCall1994 3 SA 201 (C) regarding the suggested list of factors to determine the best interests of the child. S 7 Children's Act (in operation since 2007-07-01) has introduced the best interests of the child standard which is applicable in all matters covered by the Children's Act.
129 Furthermore, the importance of having a legal practitioner assisting the child highlights the need for legal assistance when the child is involved in civil litigation. This echoes the reason why s 14 needs to be linked to s 28(1)(h) Constitution.
130 2005 6 SA 50 (T).
131 See further Swart "Unaccompanied minor refugees and the protection of their socio-economic rights under human rights law" 2009 aHrLJ 103-128 for insight into the practical treatment of unaccompanied minor refugees in Ghana and South Africa.
132 Par 5 (54B-C).
133 Protected in terms of ss 12, 28(1)(c), 28(1)(g), 28(2), 33, 34, 35 Constitution.
134 Par 6 (54C-E).
135 Par 13 (60I-J) where De Vos J specifically ordered in point 10 of the order that "the ninth respondent [commissioner of child welfare Krugersdorp] appoint a legal practitioner for each of the 13 foreign children presently detained at Dyambo, in terms of s 28(1)(h) of the Constitution of South Africa, 1996, if it appears that substantial injustice would otherwise result".
136 Par 23 (58B/C-C/D) where the court was informed of the children's plight and the ongoing admission of children in the repatriation centre with the appointment of a curator ad litem. The court (par 27 (58I)) appointed the curatorad litemas the children's legal representative in terms of s 28(1)(h), referring to Soller v G 2003 5 SA 430 (W) 438 where the task of a legal practitioner in terms of s 28(1)(h) is set out, and added that all unaccompanied children that find themselves in South Africa illegally should have a legal representative appointed to them by the State (par 29 (59C-D)). See Martin v Road Accident Fund 2000 2 SA 1023 (W) 1034B-C that it is sometimes undesirable for a person to be both curator and legal representative.
137 2005 6 SA 535 (C) par 6 (539G/H). The court came to this decision after reading and considering the pleadings. Also cited as Rosen v Havenga2006 4 All SA 199 (C).
138 Par 6 (539I/J-540A/B) citing a number of reasons for considering such an appointment for the child: In the first place, the applicant was seeking drastic relief in the existing access arrangement, which could have serious implications for the child and her father. Secondly, the interests of the child may not be compatible with those of the custodian parent. Thirdly, there may be the need to articulate the views of the child in the proceeding in the interests of justice. Finally, separate legal representation may be in the best interests of the child.
139 Legal Aid Board in re Four Children (512/10) [2011] ZASCA 39 (2011-03-29).
140 Par 1.
141 Three of the children were eleven years old.
142 The name under which the Legal Aid Board performs its functions in some regions.
143 Their mother previously considered moving abroad but abandoned those plans after an unsuccessful application to the High Court: par 9.
144 "It was taken further off course" per Nugent JA par 20. The court of first instance held the view that the duty of a legal practitioner in terms of s 28(1)(h) would have been "to advance the case of the children" while "independent judgment" was necessary.
145 Par 12.
146 Par 11.
147 Heaton 92.
148 Bosman-Sadie & Corrie 30.