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[2016] ZAWCHC 34
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Minister of Social Development Western Cape and Others v Justice Alliance of South Africa and Another (20806/2013) [2016] ZAWCHC 34 (1 April 2016)
REPUBLIC
OF SOUTH AFICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No. 20806/2013
DATE:
1 APRIL 2016
In
the matter between:
THE
MINISTER OF SOCIAL DEVELOPMENT
WESTERN
CAPE
............................................................................................................
First
Appellant
THE
DEPARTMENT OF SOCIAL DEVELOPMENT
WESTERN
CAPE
........................................................................................................
Second
Appellant
THE
MINISTER OF EDUCATION, WESTERN
CAPE
...........................................
Third
Appellant
THE
DEPARTMENT OF EDUCATION, WESTERN
CAPE
.................................
Fourth
Appellant
And
THE
JUSTICE ALLIANCE OF SOUTH
AFRICA
..................................................
First
Respondent
GOVERNING
BODY, OTTERY YOUTH
CENTRE
...........................................
Second
Respondent
Before:
The Hon. Mr Justice Binns-Ward
The
Hon. Ms Justice Fortuin
The
Hon. Ms Justice Boqwana
Date
of appeal hearing: 30 March 2016
Date
of judgment: 1 April 2016
JUDGMENT
BINNS-WARD J
(FORTUIN and BOQWANA JJ concurring):
[1]
This
matter is an appeal in terms of
s 18
of the
Superior Courts Act
10 of 2013
. It is convenient to refer to the parties as they
were cited in the principal case before the court of first instance.
The first to fourth respondents
[1]
have come on appeal against the order by the court of first instance
on 2 March 2016 directing that paragraphs (iii), (iv)
and (vi)
of the order made in its judgment, dated 31 August 2015,
[2]
would – otherwise than as ordinarily provided in terms of
s 18(1)
of the
Superior Courts Act
[3
]
- not be suspended pending the determination of an appeal to the
Supreme Court of Appeal.
[2]
The
court a quo made the order that has been brought on appeal consequent
upon an application by the applicants in terms of
s 18(3)
of the
Superior Courts Act.
[4
]
The respondents are exercising the automatic right of appeal against
that order conferred by
s 18(4)(ii).
This court is
enjoined by
s 18(4)(iii)
to deal with the appeal as ‘a
matter of extreme urgency’.
Section 18(4)(iv)
provides
that the order of the court a quo is automatically suspended pending
the outcome of this appeal. The nature of the
discretion
entailed in making an order in terms of
s 18(3)
is a wide one.
An appellate court is therefore able to substitute its finding for
that of the court a quo if it is convinced, for
reasons founded in
law or predicated on a different finding on the facts, that the
application should have been decided differently.
It is
unfettered by the limitations that would attend its ability to
interfere if the decision of the court a quo had been
made in the
exercise of a discretion in the true or narrow sense.
[5]
[3]
It is appropriate, before dealing with the
merits of the appeal, to sketch the litigious backdrop to the
matter. That will
also afford the opportunity to mention the
relevant statutory provisions that bear centrally on the questions in
issue in the principal
case. Consideration will be given in that
context to the approach in principle to be adopted by the courts to
applications in terms
of
s 18(3)
of the
Superior Courts Act.
[4
]
In
the principal proceedings the applicants had sought certain directory
and interdictory relief premised on their contentions as
to the
proper construction and intended effect of various provisions of the
Children’s Act 38 of 2005 concerning the establishment
and
operation of child and youth care centres. Broadly stated, they
had sought a declaration that four facilities that had
historically
been operated by Western Cape administration as schools of industry
or reform schools under previous legislation (viz.
the
Ottery
Youth Care and Education Centre, Die Bult Youth Centre, the
Wellington Youth Centre and the Eureka Centre)
fell
to be characterised as child and youth care centres of the type
referred to in
s 196(1)(d)
and (e)
[6]
read with
s 191(2)(i)
and (j) of the Children’s Act,
respectively.
[7]
[5]
The facilities are currently assets of the
Western Cape Government Department of Education. The Department
is in the process
of ‘repurposing’ all but one of these
facilities (Ottery) for use as schools for children with special
needs.
The applicants contended that the resultant closure of
the facilities as child and youth care centres meant that the ability
to
house children in need of care and protection close to their
families was being compromised, with prejudicial consequences for the
children’s prospects of successful reintegration into society.
It allegedly also meant that children received into
secure care for
reasons unconnected to involvement in criminal activity were having
to be housed in allegedly prison-like secure
care facilities at
Outeniqua, Vredelus, Horizon and Clanwilliam. The secure care
centres have been designed and equipped
to house (or ‘physically
contain’ as the Children’s Act puts it) children who have
been sentenced under the
Child Justice Act 75 of 2008
, or are
awaiting trial and sentencing under that Act. It was alleged
that this resulted in children who could otherwise have
been housed
in the facilities that are being ‘repurposed’ being
exposed to the insidious influence of criminal and
gang-related
subcultures.
[6]
The ‘schools’ in question had
been formally closed in terms of notices published by the then
Western Cape MEC for Education
in terms of the Western Cape
Provincial School Education Act 12 of 1997 in 2000, long before the
commencement of the Children’s
Act in April 2010.
Notwithstanding the closure notices, the facilities had, however,
continued in use as
de facto
‘child and youth care centres’, to use the language of
Children’s Act. The evidence suggested that the
child and
youth care centre functions at all but one of the facilities (the
Ottery Youth Care and Education Centre) had been wound
down
progressively since about 2010. There were only 8 children
placed on an ‘in need of care and protection’
basis at
Wellington when the respondents’ answering papers in the
principal case were delivered, and none at Eureka and Die
Bult.
The last-mentioned two centres had therefore ceased to function even
as
de facto
child and youth care centres by the time the application in the
principal case was heard. Die Bult Centre had already been
converted for use as a secondary school for children with special
needs.
[7]
The
Children’s Act ordained that pre-existing government children's
homes, places of safety, secure care facilities, schools
of industry
and reform schools became child and youth care centres with effect
from the commencement of the Act. It also
prescribed that
former schools of industry and reformatories under the administration
of provincial departments of education had,
within two years of the
commencement of the Act (1 April 2010), to be transferred to be
administered by the respective provincial
departments of social
development.
[8]
The Act
thus requires youth and care centres to be the responsibility of the
provincial departments of social development,
with the departments of
education being responsible only for the provision of education to
the children who are housed there.
[9]
As matters stand, the facilities in issue in this case are being
administered by the provincial Department of Education;
and their
respective staff complements are employees of that department, not
the provincial Department of Social Development.
It is the
declared intention of the Department of Education to use as many as
possible of the current staff complements at the
facilities in the
schools for children with special needs that it intends to establish
there.
[8]
The
Children’s Act recognises the practical importance for the
purposes of achieving its objects of the maintenance of a spread
of
centres throughout the country and the determination of the range of
therapeutic programmes to be available in them. To
that end it
prescribes that the national Minister of Social Development is
required to develop ‘a comprehensive national
strategy aimed at
ensuring an appropriate spread of child and youth care centres
throughout the Republic providing the required
range of residential
care programmes in the various regions’. The Minister is
required to do so ‘after consultation
with interested persons
and the Ministers of Education, Health, Home Affairs and Justice and
Constitutional Development’.
[10]
[9]
The
provincial MECs for Social Development are required by the Children’s
Act, within the aforementioned national strategy
developed by the
national Minister, to provide for a provincial strategy aimed at ‘the
establishment of an appropriate spread
in the province of properly
resourced, co-ordinated and managed child and youth care centres
providing the required range of residential
care programmes’.
The MECs are also required to maintain a record of all available
child and youth care centres in
the province concerned and of the
therapeutic programmes designed for the residential care of children
outside the family environment
offered by each centre.
[11]
Various types of therapeutic programmes contemplated in terms of the
Act are set out in s 191(2) of the Children’s
Act.
[12]
Other types of programme that may be offered at child and youth care
centres are described in s 191(3).
[13]
[10]
It was common ground in the court a quo
that the national government had failed to develop the strategy
prescribed in terms of s
192(1) of the Children’s Act, and that
it had consequently not been possible for the provincial departments
of social development
to draw up the provincial strategies
contemplated in terms of s 192(2). Paragraphs (i) and
(ii) of the court a
quo’s order, which directed the national
government and the Western Cape provincial government to develop the
required strategies
within the periods stipulated by the court have
not been challenged, and are not subject of the appeal currently
pending before
the Supreme Court of Appeal with leave granted by the
court a quo.
[11]
In the result, the national Minister of
Social Development, who was the fifth respondent in the principal
proceedings, was bound
by paragraph (i) of the order in the principal
proceedings to produce the national strategy by the end of February
2016, and the
first respondent, by paragraph (ii) of the order, to
provide the provincial strategy within four months of the date upon
which
the national strategy was produced. Those paragraphs were
plainly, and quite appropriately in my respectful view, directed
at
making the national and provincial authorities comply with their
statutory duty to give attention to the number and spread of
child
care centres and the programmes to be available at them. The
required administrative determination of those questions
will address
the fundamental concerns upon which the applicants brought the
principal case. There was no evidence before
us as to whether
paragraph (i) of the order has been complied with, and, if not,
what the applicants had done about it.
Upon enquiry, we were
informed by the applicants’ counsel that paragraph (i) of
the order had not been complied with
and that no steps have as yet
been initiated by the applicants to bring the fifth respondent to
account for the apparently unexplained
non-compliance with the order.
[12]
Paragraphs (iii) to (vi) of the order made
by the court a quo in the principal case provided as follows:
(iii)
It is declared that in accordance with section 196(1)(d) of the
Children’s Act,[
[14]
]
from 1 April 2010, Ottery Youth Centre in Ottery in the
Metro South Education District (“Ottery Centre”),
Die
Bult Jeugsentrum in George in the Eden and Central Karoo Education
District (“Die Bult Centre”) and Wellington
Youth Centre
in Wellington in the Cape Winelands Education District (“Wellington
Centre”) are respectively regarded
as having been established
in terms of Section 195 of the Children’s Act as a child and
youth care centre providing a residential
care programme referred to
in section 191(2)(i) of the Children’s Act [
[15]
];
(iv)
It is declared that in accordance with section 196(1)(e) of the Act
[
[16]
], from 1 April 2010,
Eureka Jeugsentrum in Groot Eiland in the Cape Winelands Education
District (“Eureka Centre”)
is regarded as having been
established in terms of section 195 of the Children’s Act as a
child and youth care centre providing
a residential care programme
referred to in section 191(2)(j) of the Children’s Act [
[17]
].
(v)
It is declared that from 1 April 2012, Die Bult Centre, Eureka
Centre, Ottery Centre and Wellington Centre became the responsibility
of the Second Respondent, which responsibility includes, but is not
limited to:
(a)
Being responsible for the possession, use and upkeep of the physical
infrastructure of each child and youth care centre; and
(b)
Ensuring that each child and youth care centre is properly resourced,
co-ordinated and managed in compliance with its obligations
in terms
of the Children’s Act.
(vi)
The Second Respondent is directed to forthwith consider afresh the
placements of those children who have been placed in terms
of
sections 156(1)(h) [
[18]
] and
158 of the Act [
[19]
] at the
secure care child and youth care centres at Outeniqua, Vredelus,
Horizon and Clanwilliam and who are still so placed.
(The
‘second respondent’ is the Department of Social
Development, Western Cape.)
[13]
The order by the court a quo that
paragraphs (iii), (iv) and (vi) of its order in the principal case
should not be suspended pending
the appeal to the Supreme Court of
Appeal excluded Die Bult Centre. This was because the
applicants accepted that that facility
had already effectively been
‘repurposed’ for the education of children with special
needs; 361 children, including
178 residential learners, were already
accommodated there for that purpose.
[14]
The Ottery Youth Centre was also not
affected by the order made by the court a quo in terms of
s 18(3)
of the
Superior Courts Act because
the respondents had agreed that
that centre would continue to be used as a child and youth care
centre for the time being, and
that the position would not change
save on 12 months’ notice to the applicants. Indeed, the
indications are that steps
are being taken for the formal transfer of
that facility to the Department of Social Development as contemplated
in terms of the
Children’s Act.
[15]
The
court a quo did not accede to the applicants’ prayer that
paragraph (v) of the order in the principal case should be effective
pending the appeal. It did not explain why it did so. The
applicant’s counsel suggested the omission may have
been
per
incuriam
.
If it was in error, the applicants do not appear to have done
anything to have it corrected. It may be, however, that
the
court was concerned about imposing the budgetary responsibility for
the physical maintenance of the facilities on the Department
of
Social Development pending the determination of appeal, which would
be a necessary implication of that part of the order.
If that
was the reason, it was anomalous because the effect of paragraphs
(iii) and (iv) of the order, which deemed the centres
to have been
established as child and youth care centres in terms of
s 195
of
the Children’s Act, carried with it a duty on the MEC for
Social Development,
ex
lege
,
to establish and operate the centres from money appropriated by the
relevant provincial legislature.
[20]
If effect is to be given to
ss 195
and
196
in respect of the
facilities in issue, and they are to be run by the Department of
Social Development, it will be necessary for
that Department to
provide the personnel and funding to run them.
[16]
Section 18(1)
-(3) of the
Superior Courts
Act regulates
a process established in the common law that was, until
recently, regulated procedurally in terms of rule 49(11) of the
Uniform
Rules. (
The relevant substantive law was not
regulated in terms of the Supreme Courts Act 59 of 1959, which was
the statutory predecessor
of the
Superior Courts Act, notwithstanding
that
it had previously been regulated in terms of preceding
legislation such as
ss 36
and
39
of the Transvaal Administration
of Justice Proclamation, 14 of 1902 and
s 50
of the Royal
Charter of Justice of 4 May 1832. Hence, during the currency of
the 1959 Act the applicable substantive law
was the common law.)
[17]
The position under the common law was
described by De Villiers JA in
Reid and
Another v Godart and Another
1938 AD
511
at 513 as follows: ‘
Now, by
the Roman-Dutch Law the execution of all judgments is suspended upon
the noting of an appeal; that is to say, the judgment
cannot be
carried out, and no effect can be given thereto, whether the judgment
be one for money (on which a writ can he issued
and levy made) or for
any other thing or for any form of relief granted by the Court
appealed from. … The foundation of
the common-law rule as to
the suspension of a judgment on the noting of an appeal, is to
prevent irreparable damage from being
done to the intending
appellant, whether such damage be done by a levy under a writ, or by
the execution of the judgment in any
other manner appropriate to the
nature of the judgment appealed from
’.
[18]
The position that obtained under the
Supreme Court Act, 1959, was summarised by Corbett JA in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977 (3) SA 534
(A), at 544-5, as
follows:
At
the outset it should be stressed that the Act repealed various Union
and pre-Union statutes which made provision for the granting
of leave
to execute a Superior Court judgment pending an appeal and did not,
itself, substitute any similar provision. Two consequences
flow from
this. Firstly, since there is now no statutory provision relating,
inter alia, to applications for leave to execute a
Superior Court
judgment pending an appeal to the Appellate Division, the common law
would apply thereto…. Rule 49 (11) does
not appear to add to,
or detract from, the common law position.
Whatever
the true position may have been in the Dutch Courts, and more
particularly the Court of Holland …, it is today the
accepted
common law rule of practice in our Courts that generally the
execution of a judgment is automatically suspended upon the
noting of
an appeal, with the result that, pending the appeal, the judgment
cannot be carried out and no effect can be given thereto,
except with
the leave of the Court which granted the judgment. To obtain such
leave the party in whose favour the judgment was
given must make a
special application. … The purpose of this rule as to the
suspension of a judgment on the noting of an
appeal is to prevent
irreparable damage from being done to the intending appellant, either
by levy under a writ of execution or
by execution of the judgment in
any other manner appropriate to the nature of the judgment appealed
from. … The Court to
which application for leave to execute is
made has a wide general discretion to grant or refuse leave and, if
leave be granted,
to determine the conditions upon which the right to
execute shall be exercised (see Voet, 49.7.3;
Ruby's Cash Store
(Pty.) Ltd. v Estate Marks and Another
,
[1961 (2) SA 118
(T)] at
p. 127). This discretion is part and parcel of the inherent
jurisdiction which the Court has to control its own judgments
(cf.
Fismer v Thornton
,
1929 AD 17
at p. 19). In exercising this
discretion the Court should, in my view, determine what is just and
equitable in all the circumstances,
and, in doing so, would normally
have regard,
inter alia
, to the following factors:
(1)
the potentiality of irreparable harm or prejudice being sustained by
the appellant on appeal (respondent in the application)
if leave to
execute were to be granted;
(2)
the potentiality of irreparable harm or prejudice being sustained by
the respondent on appeal (applicant in the application)
if leave to
execute were to be refused;
(3)
the prospects of success on appeal, including more particularly the
question as to whether the appeal is frivolous or vexatious
or has
been noted not with the bona fide intention of seeking to reverse the
judgment but for some indirect purpose, e.g., to gain
time or harass
the other party; and
(4)
where there is the potentiality of irreparable harm or prejudice to
both appellant and respondent, the balance of hardship or
convenience, as the case may be.
[19]
The effect of
s 18(1)
-(3) of the
Superior Courts Act received
detailed consideration by Sutherland J
in
Incubeta Holdings (Pty) Ltd and
Another v Ellis and Another
2014 (3) SA
189
(GJ). At the time,
rule 49(11)
, which provided:
Where
an appeal has been noted or an application for leave to appeal
against or to rescind, correct, review or vary an order of
a court
has been made, the operation and execution of the order in question
shall be suspended, pending the decision of such appeal
or
application, unless the court which gave such order, on the
application of a party, otherwise directs.
was
still on the rule book. The sub-rule has since been
deleted.
[21]
The learned
judge noted that it had been argued on behalf of the respondents in
the application in terms of
s 18(3)
of which he was seized that
s 18
had introduced ‘a fresh test for leave to put into
operation and execute an order pending the appeal processes and that
judicial
authority that predates the section has been overtaken by
its enactment’. He proceeded on the basis that it was
that
proposition which called for interrogation.
[22]
He did so apparently on the understanding that the case was ‘about
the application of rule 49(11) of the Uniform Rules
of Court and the
impact upon that rule by the provisions of
s 18
of the
Superior
Courts Act&rsquo
;.
[23]
The only observations made in the judgment in the latter regard
appear to have been that
s 18
, unlike
rule 49(11)
, does not make
any provision in respect of applications to rescind, correct, review
or vary an order of a court
[24]
and that the sub-rule, consistently with the new Act, implied that an
order putting a judgment subject to a pending appeal into
effect
would be given only exceptionally.
[25]
I agree with that, but in my judgment, rule 49(11) plays no
role in the interpretation of s 18. For one, it has
been
deleted; and moreover, as observed in the passage from the judgment
in
South
Cape Corporation
quoted above, the sub-rule did ‘not appear to add to, or
detract from, the common law position’. The pertinent
enquiry concerns the extent, if any, to which s 18 has altered
the position at common law.
[20]
Sutherland J treated of the
exceptionality requirement in s 18(1), at para 21-22 of
Incubeta Holdings
,
as follows:
[21]
The context relevant to s 18 … is the set of considerations
pertinent to a threshold test to deviate from a default
position,
i.e. the appeal stays the operation and execution of the order. The
realm is that of procedural laws whose policy objectives
are to
prevent avoidable harm to litigants. The primary rationale for the
default position is that finality must await the last
court's
decision in case the last court decides differently….
[22]
Necessarily, in my view, exceptionality must be fact-specific. The
circumstances which are or may be ‘exceptional’
must be
derived from the actual predicaments in which the given litigants
find themselves. I am not of the view that one can be
sure that any
true novelty has been invented by s 18 by the use of the phrase.
Although that phrase may not have been employed
in the judgments,
conceptually the practice as exemplified by the text of rule 49(11),
makes the notion of the putting into operation
an order in the face
of an appeal process a matter which requires particular ad hoc
sanction from a court. It is expressly recognised,
therefore, as a
deviation from the norm, i.e. an outcome warranted only
‘exceptionally’.
Those remarks were
made with reference to the learned judge’s appreciation of the
effect of rule 49(11), then still in force.
I am in respectful
agreement with the analysis. It applies equally, I think, in
the context of the common law. Any
order permitting the
execution of a judgment pending an appeal would constitute permission
to deviate from the ordinary incidence
of the common law. The
judgments in which such an order has been considered consistently
show a consciousness of the exceptionality
involved.
[21]
I
also agree with Sutherland J’s observation that it is the
requirement, in terms of s 18(3), that a party making
application
in terms of that provision must prove ‘the presence
of irreparable harm to the applicant/victor, who wants to put into
operation
and execute the order; and the absence of irreparable harm
to the respondent/loser, who seeks leave to appeal’ that
introduces
‘a new dimension’.
[26]
But even there, the novelty is relatively subtle in my view.
[22]
A court determining such an application on
purely common law principles would have been centrally concerned not
to defeat the main
object of the rule concerning automatic
suspension, namely to avoid irreparable prejudice to the loser in the
carrying out of the
judgment before the appeal is decided. Any
applicant bringing such an application at common law would have had
to address
that concern. It would have done so by seeking to
demonstrate that the other party would not suffer irreparable harm if
the
court were to grant the relief sought. In respect of
judgments sounding in money that was invariably done by tendering
security
for its repayment should the judgment be reversed on appeal.
[23]
The
requirement in s 18(3) that the applicant must prove that he or
she will suffer irreparable harm if the court does not
so order is
also no more than what would ordinarily be required under the common
law to justify the granting of the exceptional
relief. The
words ‘in addition’ in the sub-section are therefore
puzzling. They might suggest that an applicant
is now required
also to show other grounds of exceptionality in order to succeed.
I doubt that this was the intention.
I think it was intended
that other grounds of exceptionality, whatever their nature,
[27]
would not by themselves suffice, absent satisfaction of the
double-edged irreparable harm requirements stipulated in the
sub-section.
[24]
The
essence of the novelty introduced by s 18(3) is - as Sutherland
J, with respect correctly, identified - the relative fettering
of the
court’s freedom, for the purpose of deciding the application,
to be able to weigh what Corbett JA referred to
as factors (1)
and (2) in the passage from
South
Cape Corporation
quoted above according to what might be considered just and equitable
on the facts of the given case. Section 18(3) has introduced
an
absolute threshold that did not exist at common law: the applicant
must prove that the loser will not suffer irreparable harm
if the
application is granted, and that it will suffer such harm if the
application is refused. If it fails to do so, the
application
cannot succeed whatever the equities of the case might be. As
Sutherland J observed in
Incubeta
Holdings
,
‘
Two
distinct findings of fact must now be made, rather than a weighing-up
to discern a “preponderance of equities”.
’
There is thus no longer any scope for factor (4) in Corbett JA’s
description of the nature of the court’s
exercise of its
discretion. There is also no longer any basis to regard the
incidence of the
onus
as debatable; the
onus
is now unambiguously on the applicant.
[28]
[25]
Counsel for the respondents argued in their
heads of argument that the requirements of s 18(3) set a higher
standard for what
needs to be proved in respect of irreparable harm
than the ‘
the potentiality
of irreparable harm or prejudice’ referred to in
South
Cape Corporation
. I do not
agree. In my view, the provision does not require proof that
there is a certainty that irreparable harm will
be suffered.
Proof on a balance of probabilities that there is a likelihood that
such harm will be suffered will suffice.
That is
indistinguishable from establishing ‘the potentiality’ of
such harm.
[26]
It
is important to emphasise, as counsel on both sides acknowledged,
that notwithstanding their introduction of an absolute threshold
in
the sense just discussed, the provisions of s 18 do not result
in the exercise of judicial discretion in the wide sense
[29]
being excluded in the determination of applications for leave to
execute or for orders
ad
factum praestandum
to operate pending an appeal. Even if what I call the
double-edged requirements on irreparable harm and that of
exceptionality
are satisfied, the court retains ‘a wide general
discretion to grant or refuse leave and, if leave be granted, to
determine
the conditions upon which the right to execute shall be
exercised’.
[30]
Considerations of what is just and equitable in the peculiar
circumstances remain relevant in that context.
[27]
Differing
in this respect from the approach propounded in
Incubeta
Holdings
,
[31]
I consider, consistently with the view expressed by Corbett JA
in
South
Cape Corporation
at 545E, that the court’s assessment of the prospects of
success in the appeal (factor (3) in
South
Cape Corporation
)
remains a relevant factor in the consideration. Indeed, counsel
on both sides in the current matter were in agreement with
that
proposition. It follows that the less sanguine a court seized
of an application in terms of s 18(3) is about the
prospects of
the judgment at first instance being upheld on appeal, the less
inclined it will be to grant the exceptional remedy
of execution of
that judgment pending the appeal. The same quite obviously
applies in respect of a court dealing with an
appeal against an order
granted in terms of s 18(3). The position is very much
akin to that which pertains when interim
interdictory relief pending
a judicial review is being considered.
[28]
Sutherland
J appears to have considered that the prospects of the appeal do not
form part of the consideration because leave to
appeal inherently
carries in it an acceptance that there was a reasonable prospect the
appeal might succeed. That is indeed
so in most cases,
[32]
but even in such matters there is scope for degrees of conviction on
the likelihood of such prospect being realised. This
is
especially so if the court deciding the s 18(3) application is
differently constituted from that which granted leave to
appeal;
which will always be the case when an order made in terms of an
application in terms of s 18(3) is taken on automatic
appeal.
Moreover, as the facts in
Incuteba
Holdings
illustrate, an application in terms of s 18(3) may arise for
determination before an application for leave to appeal is heard
or
decided; alternatively, after an application for leave to appeal has
been refused and a further application for leave has been
noted to
the Supreme Court of Appeal, but not yet determined.
[29]
When considering the prospects of the case
on appeal in the current matter the following features of the
principal case are immediately
striking: (i) the inconsonance of the
orders made by the court with the relief sought in terms of the
notice of motion and (ii) the
degree to which paragraph (vi) of
the order read with paragraph (iii) and (iv) involved the court a quo
in prescribing to the second
respondent how it should order its
operations and discharge its functions in terms of the Children’s
Act. I shall revert
to the second feature in more detail later,
but the effect of those orders taken together (including paragraph
(v)) was anomalous
in the context of the relief expressly sought in
the notice of motion that by implication was refused in the judgment
in the principal
case.
[30]
There were 24 paragraphs in the notice of
motion as opposed to the seven paragraphs in the order that was
granted. Paragraphs
3, 4 and 11 of the notice of motion
corresponded essentially with the relief granted in terms of
paragraphs (i) and (ii) of the
order. Paragraphs 5-9
corresponded with paragraphs (iii), (iv) and (v) of the order.
The court a quo did not deal with
the questions in its judgment in
the principal case, but it did not make any orders consistent with
the relief sought in paragraphs
10 and 12-18 of the notice of motion
or grant a structural interdict as sought in terms of paragraphs
19-22 of the notice of motion.
Notably, there is no equivalent
of paragraph (vi) of the order to be found in the relief sought in
the notice of motion.
The applicant’s counsel stated
during argument, however, that paragraph (vi) of the order was a
‘watered-down’
version of the relief sought in terms of
paragraph 15 of the notice of motion; viz:
[An
order d]irecting the Second Respondent forthwith to remove all
children, not sentenced or awaiting trial but placed in terms
of the
Act, and who have been placed at the secure care child and youth care
centres at Outeniqua, Vredelus, Horizon and Clanwilliam
(“the
secure care facilities”), from such secure care facilities, and
place them in accordance with sections 158(3)
and 158(4) of the Act,
at either Otterey Centre or at Wellington Centre, and should the
latter two centres become fully occupied,
then to appropriate
temporary safe care managed by the Second Respondent and thereafter
in terms of section 158(3) and 158(4) of
the Act to a child and youth
care centre offering the respective residential care programme which
a court has determined for each
of the children so removed, but not
to secure care facilities mentioned above
Accepting that
explanation affords confirmation that paragraph (vi) was intended to
be a watered-down version of the relief sought
by the applicants for
an order directing the second respondent how to fulfil its relevant
functions in terms of the Children’s
Act.
[31]
The Children’s Act vests a wide
discretion in the provincial departments of social development in
respect of the discharge
of those functions. As mentioned, it
is the responsibility of the departments to determine where care
centres should be situated
and what programmes should be offered at
each of them. This implies that the departments decide whether
to open new centres
or close existing ones. In terms of s 158
of the Children’s Act, the courts determine whether a child
must be received
at a centre and what therapeutic programmes it must
undergo, but it is the provincial head of the department who is
charged with
determining, with reference to the factors described in
sub-sections (3) and (4) and ‘any other relevant factors’,
in which centre the child will be placed. The relief sought in
terms of paragraph 15 of the notice of motion would therefore
significantly trench on the department’s discretionary powers
in a number of material respects. The ‘watered-down’
version is essentially to the same effect. Construed in the
context of the judgment in the principal case (cf.
Firestone
South Africa (Pty) Ltd v Genticuro A.G.
1977 (4) SA 298
(A) at 304D-F), it implies the re-opening of the
centres that have been closed and the placement there of some of the
children
currently accommodated in secure care at the centres which
are in operation.
[32]
Section 18(4)(i)
of the
Superior Courts Act
prescribes
that a court which makes an exceptional order pursuant to
an application in terms of
s 18(3)
‘must immediately
record its reasons for doing so’. The following reasons
may be distilled from the court a quo’s
judgment in the
application for leave to enforce (I have endeavoured to identify the
essence of the several paragraphs of the judgment
of 2 March
2016 by using the learned judge’s own words):
a)
It is clearly ‘desirable that a child
found to be in need of care should at all times be placed in a
facility if necessary,
which promotes family contact and ultimate
reunification’. (para 8)
b)
It is clearly undesirable that children
‘such as these’ (i.e. ‘children in need of
protection and … not
being held because of criminal activity’)
be placed in facilities that are structured as high security
facilities.
(para 9)
c)
‘
It is contrary to interest of these
children to be placed with awaiting trial prisoners who would exhibit
subcultural rituals and
norms which would commonly result in the
induction of children into gangs….It can never be in the best
interest to place
children in need of care and protection with
children who are sentenced, awaiting trial or sentencing.’
(para 10)
d)
‘
[E]very child has rights as set out
in Section 28 of the Constitution. The State bears the
obligation to respect, protect
and promote and fulfil those rights.’
(para 12)
e)
‘
[A] child found to be in need of
care would carry a stigma if he or she was housed in a facility
together with children who have
indulged in criminal activity and
require rehabilitation’. (para 13)
f)
‘
Since the [principal judgement dated
31 August 2015] has become the subject of an appeal, it is clear from
the conduct of the respondent
that the repurposing will continue.
As indicated in [the principal] judgment…placing these
children together with
awaiting trial prisoners constitutes a
flagrant disregard of Section 12 of [the] Constitution. …
Placing children
in need of care in that environment amounts to an
infringement of their constitutional right to security and freedom
from violence.
Furthermore, placing such children with those
who have transgressed the law, results in the deprivation of their
liberty and arguably
[?constitutes] a form of detention without
trial’. (para 14)
g)
‘
[T]he period which would
elapse…until a judgment on appeal does not merely represent a
random passage of time. It portrays
a window in the life of
each and every child found in need of care and that stands to be
affected by it. … Further harm
and risk cannot be chanced and
[the] court would be well justified in ensuring that an order be
granted to safeguard their interests
pending the finalisation of the
intended appeal’. (para 15)
h)
‘
[The] court, as upper guardian of
all minor children, has the power to prescribe the conditions
relating to the care and control
of children in need of care…[F]or
the purposes of determining [the] application, the aforesaid power is
certainly not limited’.
(para 16)
i)
The respondents would not suffer
irreparable harm were the orders to be implemented immediately.
Infrastructural changes and
the transfer of staff might carry a
financial cost, but ‘the notion of irreparable harm is
understood in law to be the type
of harm that cannot be corrected or
cured through monetary compensation or that the prior conditions
cannot be put back to the
way they were’. The court held
that it could not ‘in these circumstances find that the harm
which would be suffered
by the Respondent[s] would be
irreparable
’.
(Emphasis in the original.) (para 17)
j)
‘
For these reasons [i.e. those
summarised in the paragraphs of the judgment identified above]
irreparable harm and prejudice will
be suffered by children in need
of care if the provisions of the order … are not given effect
to pending finalisation of
an appeal’. (para 18)
[33]
I do not think it is necessary for present
purposes to canvas all those reasons individually. It is
evident that the principal
reason why the court a quo considered that
the exceptional course of making its orders effective notwithstanding
the pending appeal
for which it had granted leave was appropriate was
its view that housing children who were subject to secure care
therapeutic programmes
for involvement in criminal activity in the
same facilities that housed children that were in secure care
programmes for being
uncontrollable was unconstitutional and that
every passing day during which such an unconstitutional regime
prevailed occasioned
an intolerable infringement of the basic rights
of the second mentioned category of children. It is not the
function of this
court to in any manner pre-empt the appeal in the
principal case, but it is unavoidable for current purposes, having
regard to
the basis given for the interim order, that we should
consider how well-grounded the court a quo’s reason was in the
context
of the evidence and the applicable statutory provisions.
[34]
The
evidence in the proceedings in the principal case, having been
instituted by the applicants claiming final relief on motion,
fell to
be assessed in accordance with the principles rehearsed in
Plascon-Evans
Paints (Tvl) Ltd. v Van Riebeck Paints (Pty) Ltd.
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634-5. Accordingly, the facts alleged by the
respondents, fell to be accepted for the purposes of deciding the
case,
unless they could be rejected on the papers as palpably
far-fetched or unfounded. As to the alleged exposure of
children
undergoing residential therapeutic programmes to children in
secure care because they were sentenced offenders or awaiting trial
on criminal charges, the principal answering affidavit delivered by
the respondents in the principal proceedings
[33]
contained the following averments:
12.
The Respondents have repeatedly advised the Applicants that children
found
by the courts to be in need of care and protection due to
behavioural problems, who are placed in the same child and youth care
centres with children who are awaiting trial or have been sentenced,
are accommodated separately and attend separate programmes
during the
day.
13.
The Applicants were further advised that children in need of care and
protection, without behavioural problems are not accommodated in the
same youth and care centres as children who are awaiting trial
or
have been sentenced.
The correctness of
the advice given by the respondents to the applicants was not
rebutted on the papers. All that the applicants
averred
(
per
John Smyth QC) was that on an inspection of the
Horizon facility it had been difficult to see how the different
groups of children
could be kept separate.
[35]
The factual premise for the primary reason
offered by the court a quo for the exceptional order made by it had
thus not been established
in the principal proceedings. I
venture that this may cause the applicants a serious difficulty at
the appeal. It was
also in any event not open to the court a
quo, in the absence of any constitutional challenge to the provisions
of the Children’s
Act, to seek by its order to override the
provisions of the statute by imposing its own preference.
Section 194 of the Act
provides for the determination by the Minister
of Social Development of national norms and standards for child and
youth care centres
by regulation after consultation with interested
persons and the Ministers of Education, Health, Home Affairs and
Justice and Constitutional
Development. In terms of s 194(2)(n)
such norms and standards should, amongst other matters, relate to
‘
measures for the separation of
children in secure care programmes from children in other
programmes
’. That and other
provisions of the statute indicate clearly that a diversity of
therapeutic care programmes may be
offered at a particular child and
youth care centre, including programmes entailing secure care, as
well as those that do not.
All that is required, is that there
should be a separation within a particular facility between children
in secure care and those
not in secure care. There are three
identifiable categories of secure care children. There is no
provision that children
in those three categories should be kept
separately. As it is, however, the evidence referred to earlier
established that
in the Western Cape there is a more fundamental
separation than that required in terms of the legislation: Children
in secure care
are housed in separate facilities from children not in
secure care; and the different categories of children in secure care
(viz.
those contained in secure care on account of behavioural,
psychological and emotional difficulties (s 191(2)(i)) and those
contained because they are awaiting trial or sentence (s 191(2)(h))
or in terms of the
Child Justice Act (s
191(2)(j))) are housed
separately in the facilities in which secure care is provided).
[36]
Paragraph
(vi) of the order of the court a quo in the principal proceedings is
directed at obtaining the placement at separate centres
of children
contained in secure care on the basis of having displayed criminal
behaviour and those so contained because the parent
or care-giver
cannot control the child. The Act provides no basis for
placement to be effected on that basis. On the
contrary, as I
have observed, the basis for separation contemplated by the Act is
between children physically contained
[34]
in secure care and those received into residential care to undergo
therapeutic programmes in which they are not subject to physical
containment.
[37]
Insofar as the court’s concern about
the distribution of child and youth care centres in relation to the
objects of community
and family contact and reintegration into
society, these are matters to which the strategies required in terms
of s 192 of
the Children’s Act are directed. It has
been remiss of the national Minister not to have produced a strategy,
but paragraphs (i)
and (ii) of the court a quo’s order,
which, as mentioned, are not being impugned on appeal, are in effect
and fall to be
complied with within a short period of time. The
court’s concerns should be addressed by those strategies.
If
the strategies that are developed should prove to be inadequate to
uphold the constitutional rights of the affected children, the
proper
remedy will be to take them on judicial review. It does not
seem just and equitable to anticipate the process, particularly
having regard to the effect of paragraphs (i) and (ii) of the order
and the short period involved before the expedited appeal.
[38]
As
to the implication in the court a quo’s order that additional
centres should be taken back into use, the nature of the
inter-ministerial and other interested parties consultative process
prescribed in terms of s 191(1) of the Children’s
Act, to
which the court a quo made no reference, highlights the polycentric
and policy-laden character of the decision-making process
concerning
the distribution of child and youth care centres throughout the
country and which programmes should be provided at them.
The
applicant’s counsel submitted that it had not been lawfully
open to the provincial government to close the facilities
as care
centres before a strategy as contemplated in terms of the Act had
been adopted. The court a quo did not grant the
relief in the
principal application that had been sought on that premise in terms
of paragraph 13 of the notice of motion.
[35]
It is not necessary to decide the point, but the position does not
appear to me to be as clear as counsel would have it.
It is
well established that courts should tread warily for reasons of
constitutional policy in making orders that trench on the
decision-making powers of the executive;
a
fortiori
when the decisions in question are polycentric and policy-laden in
nature; see, for example,
National
Treasury and Others v Opposition to Urban Tolling Alliance and Others
2012 (6) SA 223
(CC), at para 26-27 and 47;
International
Trade Administration Commission v SCAW SA (Pty) Ltd
2012 (4) SA 618
(CC), at para 90-112 and
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para 46-48.
[39]
It is not constitutionally appropriate for
a court to make a decision of its preference in respect of matters
that valid legislation
has entrusted to another arm of government.
It should restrict itself to making orders directed to compel the
other arm of
government to act within the law by complying with the
Constitution or the applicable legislation, rather than prescribing
how
the executive should fulfil its functions within the law.
This is especially so when the functions in issue entail polycentric
and policy-laden decision making. I appreciate that the cases
cited in the preceding paragraph concerned interim interdicts
and
judicial review, but the principles applied in those contexts apply
equally in the context of a mandatory order in terms of
s 18(3).
The effect of the order made by the court a quo is indistinguishable
from that of a positive interim interdict
pendente
lite
. The effect of implementing
paragraph (iii), (iv) and (vi) of the order in the principal case
would, for practical purposes,
be the equivalent of the
implementation of a strategy of the nature contemplated by s 192.
If carried out, however,
its implementation would occur without any
of the consultative processes that the legislature has indicated
should precede it.
[40]
The issue of time frames also appears to
have weighed heavily with the court a quo in making the relevant
paragraphs of its order
of immediate effect notwithstanding the
pending appeal. It appears to have considered that not a day
could go by without
the affected children suffering irreparable
prejudice. I have already indicated that whether what the court
a quo considered
to be prejudicial is legally cognisable on the facts
is uncertain. But in any event, the question of urgency has to
be assessed
holistically with due regard to the context. The
immediate context shows that the principal proceedings were
instituted as
a matter of alleged urgency on 1 December 2013, the
matter came to hearing on 24 February 2015 and, as mentioned,
judgment was
given on 31 August 2015. Leave to appeal was
granted on 14 October 2015. The application in terms of
s 18(3)
was instituted on 18 December 2015, heard on 9
February 2016 (having been postponed to that date by agreement on
22 December
2015), and decided on 2 March 2016. The court
a quo was aware that application had been made to the Supreme Court
of Appeal
for a preferential set down of the appeal. The date
of 17 May 2016 has since been allocated for that hearing.
[41]
It is evident therefore that the principal
application was not pressed with urgency and it was more than two
months after leave
to appeal had been granted that the applicants
were moved to apply for an order in terms of s 18(3). The
national strategy
had been outstanding for nearly three years and was
due to have been produced pursuant to those provisions of the court a
quo’s
orders that all parties accept were properly made.
What considerations of exceptionality impelled an immediate
implementation
of the other provisions of the court’s order
when matters had dragged on for more than five years since the
commencement
of the Children’s Act and the facilities in issue
have effectively ceased to be centres for child and youth care?
[42]
The
reason for the timing of the application in terms of s 18(3)
given in the supporting affidavit was the discovery in early
December
2015 that the fourth respondent intended to proceed with the
‘repurposing’ of the Eureka and Wellington facilities.
The repurposing is what is alleged to have been the basis for the
applicants’ decision to apply urgently for an order in
terms of
s 18(3)
of the
Superior Courts Act. Up
to that stage there
was no contention that the passing of each day in the lead-up to the
appeal implied irreparable harm to the
affected children. But
it is common cause that the repurposing is reversible. The
programme of repurposing thus did
not provide a proper basis to
institute the proceedings for exceptional relief. What is more,
the court a quo had declined
in the principal proceedings to make an
order as sought in paragraph 13 of the notice of motion ‘declaring
the decisions
to close and/or the intended closures of [the
facilities] to have been unlawful or unconstitutional’.
[36]
When pressed, counsel for the applicants conceded before us that if
the impetus for seeking relief in terms of
s 18(3)
of the
Superior Courts Act had
been, as alleged, the continued repurposing
of the facilities, then the proper remedy would have been rather to
seek interim prohibitory
interdictal relief to preserve the status
quo, not to seek the implementation of orders which directed a change
to the status quo.
It does not matter that the applicant may
have encountered difficulty in that regard in the context of the
court a quo having
withheld the equivalent relief sought on a final
basis in terms of paragraph 13 of the notice of motion.
[43]
In the context described in the previous
paragraphs, the court a quo should in my view have recognised that
the application was
misconceived.
[44]
It should also, in my view, have
appreciated that implementing paragraph (vi) of the order in the
principal case in any event would
not necessarily result in any
change to the current situation. That part of the order merely
requires the reconsideration
of some of the current placements.
It does not determine an outcome or even provide a timescale within
which such reconsideration
should be completed. It does not
exclude the possibility that such reconsideration should be delayed
to take account of the
national and provincial strategies, which
would not be irrational. There was thus no weighty reason to
consider that its
immediate implementation was necessary in an
exceptional sense.
[45]
In my view these considerations detract
from the notion that a sufficient degree of exceptionality to justify
the order has been
demonstrated.
[46]
It is also relevant to appreciate that the
orders made by the court a quo could not legitimately take the
maintenance and operation
of the facilities outside the auspices of
the relevant provisions of the Children’s Act. Thus, in
order to competently
require certain facilities attached to the
Department of Education to be taken into use as child and youth care
centres, the court
would have to direct the transfer of those
facilities to the Department of Social Development. Before
making such an order
– and
a
fortiori
making it effective
notwithstanding a pending appeal – the court would have to take
into account the logistical considerations
involved. In the
current case, as explained in the respondents’ answering
papers, those would entail compliance with
legislation such as the
Public Finance Management Act, the Public Service Act, the Labour
Relations Act and, as apparent from s 195
of the Children’s
Act, the making of pertinent fiscal appropriations by the provincial
legislature. It does not appear
that the court a quo took these
considerations into account in making the order that paragraphs
(iii), (iv) and (vi) of its order
of 31 August 2015 should be
carried into immediate effect notwithstanding the pending appeal.
[47]
For the reasons discussed I consider that
the court a quo should not have granted the application in terms of
s 18(3)
of the
Superior Courts Act and
that the appeal must be
upheld.
[48]
In my view there should be no order as to
costs in respect of the appeal or in the
s 18(3)
application.
Misconceived as I consider the applicants to have been in seeking an
order in terms of s 18(3) of the Superior
Court Act, I am
satisfied that they acted
bona fide
in seeking to protect and assert what they believed to the best
interests and constitutional rights of children. It is
well-established
that parties should not be unduly discouraged by the
chilling prospect of adverse costs orders from approaching the courts
in matters
in which infringements of the Bill of Rights are alleged
to be involved; see
Biowatch Trust v The
Registrar, Genetic Resources, and Others
2009 (6) SA 232
(CC), at para 21-25.
[49]
The following orders are made:
(a)
The appeal is upheld.
(b)
The orders made by the court a quo on 2
March 2016 are set aside and replaced by the following:
i.
The application is dismissed.
ii.
There shall be no order as to costs.
(c)
Each party shall bear its own costs in the
appeal.
A.G.
BINNS-WARD
Judge
of the High Court
C.M.
FORTUIN
Judge
of the High Court
N.P.
BOQWANA
Judge
of the High Court
APPEARANCES:
Appellants’
counsel: A. Katz SC
M.
Adhikari
Appellants’
attorneys: State Attorney,
Cape
Town
Respondents’
counsel I. Jamie SC
B
Studti
A.
Nacerodien
Respondents’
attorneys C&A Friedlander
Cape
Town
[1]
The
first to fourth respondents in the court of first instance were the
Minister of Social Development, Western Cape, the Department
of
Social Development, Western Cape, the Minister of Education, Western
Cape, and the Department of Education, Western Cape,
respectively.
[2]
See
Justice
Alliance of South Africa and Another v Minister of Social
Development, Western Cape and Others
[2015] ZAWCHC 120
(31 August 2015);
[2015] 4 All SA 467
(WCC).
The relevant content of the order is set out in para [12],
below.
[3]
Section 18(1)
of the
Superior Courts Act provides
:
Subject
to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution
of a
decision which is the subject of an application for leave to appeal
or of an appeal, is suspended pending the decision of
the
application or appeal.
[4]
Section 18(3)
of the
Superior Courts Act provides
insofar as
relevant:
A
court may only order otherwise as contemplated in subsection (1) …,
if the party who applied to the court to order otherwise,
in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does not so order and
that the
other party will not suffer irreparable harm if the court so orders.
[5]
Cf.
Knox
D'Arcy Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996
(4) SA 348
(A),
[1996] 3 All SA 669
, at 360D-362F (SALR) and
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and Another
2015 (5) SA 245
(CC) at para 83-90.
[6]
Section 196(1)
of the Children’s Act provides as follows
insofar as relevant:
Existing
government children's home, place of safety, secure care facility,
school of industry and reform school
(1) As from
the date on which
section 195
takes effect-
…
.
(d) a
government industrial school established in terms of section 33 of
the Children's Protection Act, 1913 (Act 25 of 1913)
and maintained
as a school of industries in terms of the Child Care Act must be
regarded as having been established in terms
of section 195 as a
child and youth care centre providing a residential care programme
referred to in section 191(2)(i); and
(e) a
reformatory established in terms of section 52 of the Prisons and
Reformatories Act, 1911 (Act 13 of 1911) and maintained
as a reform
school in terms of the Child Care Act must be regarded as having
been established in terms of section 195 as a child
and youth care
centre providing a residential care programme referred to in section
191(2)(j).
[7]
Section 191(2)(i) and (j) of the Children’s Act provide as
follows:
A
child and youth care centre must offer a therapeutic programme
designed for the residential care of children outside the family
environment, which may include a programme designed for-
(i) the
reception, development and secure care of children with behavioural,
psychological and emotional difficulties;
(j) the
reception, development and secure care of children in terms of an
order-
(i) under
section 29 or Chapter 10 of the
Child Justice Act, 2008
;
(ii) in terms
of
section 156(1)(i)
placing the child in a child and youth care
centre which provides a secure care programme; or
(iii) in
terms of
section 171
transferring a child in alternative care;
.
‘
Secure
care
’ is defined in s 1 of the Act to mean:
the physical
containment in a safe and healthy environment-
(a)
of
children with behavioural and emotional difficulties; and
(b)
of
children in conflict with the law
.
[8]
Section
196(3) of the Children’s Act.
[9]
Section 196 of the Children’s Act.
[10]
Section 192(1) of the Children’s Act.
[11]
Section 192(2) and (4) of the Children’s Act.
[12]
Section
191(2) of the Children’s Act provides:
A child and
youth care centre must offer a therapeutic programme designed for
the residential care of children outside the family
environment,
which may include a programme designed for-
(a) the
reception, care and development of children other than in their
family environment;
(b) the
reception, care and development of children on a shared basis with
the parent or other person having parental responsibilities;
(c) the
reception and temporary safe care of children pending their
placement;
(d) early
childhood development;
(e) the
reception and temporary safe care of children to protect them from
abuse or neglect;
(f) the
reception and temporary safe care of trafficked or commercially
sexually exploited children;
(g) the
reception and temporary safe care of children for the purpose of-
(i) observing
and assessing those children;
(ii)
providing counselling and other treatment to them; or
(iii)
assisting them to reintegrate with their families and the community;
(h) the
reception, development and secure care of children awaiting trial or
sentence;
(i) the
reception, development and secure care of children with behavioural,
psychological and emotional difficulties;
(j) the
reception, development and secure care of children in terms of an
order-
(i) under
section 29 or Chapter 10 of the
Child Justice Act, 2008
;
(ii) in terms
of
section 156
(1) (i) placing the child in a child and youth care
centre which provides a secure care programme; or
(iii) in
terms of
section 171
transferring a child in alternative care;
(k) the
reception and care of street children; or
(l) the
reception and care of children for any other purpose that may be
prescribed by regulation.
[13]
Section
191(3)
of the Children’s Act provides:
A child and
youth care centre may in addition to its residential care
programmes, offer-
(a)
the provision of appropriate care and development of children with
disabilities or chronic illnesses;
(b)
therapeutic and developmental programmes;
(c)
the treatment of children for addiction to dependence-producing
substances;
(d)
a programme for the treatment of children with a psychiatric
condition;
(e)
a programme to assist a person with the transition when leaving a
child and youth care centre after reaching the
age of 18; or
(f)
any other service that may be prescribed.
[14]
See note 6, above.
[15]
See note 12, above.
[16]
See note 6, above.
[17]
See note 12, above.
[18]
Section 156(1)(h)
and (i) of the Children’s Act provide:
(1) If a
children's court finds that a child is in need of care and
protection the court may make any order which is in the best
interests of the child, which may be or include an order-
…
.
(h) that the
child be placed in a child and youth care centre selected in terms
of
section 158
which provides a secure care programme suited to the
needs of the child, if the court finds-
(i) that the
parent or care-giver cannot control the child; or
(ii) that the
child displays criminal behaviour;
(i) that the
child receive appropriate treatment or attendance, if needs be at
state expense, if the court finds that the child
is in need of
medical, psychological or other treatment or attendance
; .
(The
reference to
s 156(1)(i)
in s 192(2)(j)(ii) of the Act –
see note 12, above – appears to have been intended reference
to s
156(1)(h).)
[19]
Section
158 of the Children’s Act provides:
Placement
of child in child and youth care centre
(1) A
children's court may issue an order placing a child in the care of a
child and youth care centre only if another option
is not
appropriate.
(2) If a
children's court decides that a child should be placed in the care
of a child and youth care centre, the court must-
(a) determine
the residential care programme best suited for the child; and
(b) order
that the child be placed in a child and youth care centre offering
that particular residential care programme.
(3) The
provincial head of social development in the relevant province must
place the child in a child and youth care centre offering
the
residential care programme which the court has determined for the
child, taking into account-
(a) the
developmental, therapeutic, educational and other needs of the
child;
(b) the
permanency plan for the child which was considered by the court, and
any instructions issued by the court with regard
to the
implementation of the permanency plan;
(c) any other
instructions of the court;
(d) the
distance of the centre from the child's family or community;
(e) the
safety of the community and other children in the centre, in the
case of a child in need of secure care; and
(f) any other
relevant factors.
(4) The
provincial head of social development must, as a general rule,
select a centre offering the programme ordered by the court
which is
located as close as possible to the child's family or community.
[20]
Section
195 of the Children’s Act provides:
The
MEC for social development must, from money appropriated by the
relevant provincial legislature, establish and operate child
and
youth care centres for that province.
[21]
With effect from 22 May 2015, in terms of GN R317 of 17 April 2015.
The statement in para 5 of the judgment of the court
a quo, dated 2
March 2016, that ‘[s]
ection 18
of the
Superior Courts Act came
into effect after the old
Rule
49(11)
was repealed
’
is incorrect. Curiously, sub-rule 49(12), which was
inextricably linked with sub-rule (11), was not simultaneously
deleted, and remains part of the Uniform Rules without any
discernible purpose.
[22]
Incubeta
Holdings
supra,
at para 10.
[23]
Ibid, at para 1.
[24]
Ibid, at para 9.
[25]
Ibid, at para
21-22.
[26]
Ibid, at para 16.
[27]
In the current matter, for example, it was contended that the fact
that the orders went to the protection of children’s
rights
made the circumstances exceptional within the meaning of
s 18(1)
of the
Superior Courts Act.
[28
]
Cf.
South
Cape Corporation
supra,
at pp. 546C-548, at which Corbett JA observed ‘
The
question of
onus
in applications for leave to execute has become a vexed one’.
In
the ensuing discussion the learned judge drew attention to the
distinction between onus in the true sense and in the sense
of a
duty to adduce rebutting evidence in certain circumstances (the
so-called
weerleggingslas
)
and concluded that the true or overall onus burdened the applicant
in all these applications.
[29]
As
described in judgments such as
Knox
D'Arcy Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A),
[1996] 3 All SA 669
supra, loc. cit. and
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and Another
2015 (5) SA 245
(CC) supra, loc. cit.
[30]
South
Cape Corporation
supra,
at 545B-C.
[31]
At para 26.
[32]
There are, of course, other grounds on which leave to appeal may be
granted; see
s 17(1)(a)(ii)
of the
Superior Courts Act.
>
[33]
Affidavit
by Robert MacDonald, Acting Head of Department of the Western Cape
Department of Social Development,
jurat
4 July 2014.
[34]
See
the definition of ‘
secure
care
’,
quoted in note 7, above.
[35]
Paragraph 13 of the notice of motion in the principal case read
follows:
[An
order a]
ccordingly, declaring the decisions to close and/or the
intended closures of Die Bult Centre, Eureka Centre, Ottery Centre,
and/or
Wellington Centre, and child and youth care centres, to have
been or to be unlawful and unconstitutional, in that they are inter
alia.
13.1
Not in the best interests of children in need of care and protection
in the Western Cape Province;
13.2
Not in the best interest of children in the Western Cape Province
who are being, alternatively were accommodated in such
centres.
13.3
Contrary to the Act, in particular sections 158, 192, 193, 195 and
196.
[36]
Paragraph 13 of the notice of motion in the principal case has been
quoted in note 35, above.