About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2016
>>
[2016] ZAWCHC 45
|
|
JGB and Another v Presiding Officer, Children's Court, Wynberg N.O and Others (13964/2015) [2016] ZAWCHC 45; [2016] 3 All SA 167 (WCC) (26 April 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 13964/2015
DATE:
26 APRIL 2016
In
the matter between:
JGB
....................................................................................................................................
First
Applicant
AB
..................................................................................................................................
Second
Applicant
And
THE
PRESIDING OFFICER,
CHILDREN’S
COURT, WYNBERG,
N.O
................................................................
First
Respondent
AND
9
OTHERS
........................................................................................
Second
– Tenth Respondents
Court
:
Justice M I Samela
et
Justice
J Cloete
Heard
:
30 October 2015 and 25 February 2016
Delivered
:
26 April 2016
JUDGMENT
CLOETE J:
Introduction
[1]
The applicants, a married couple, are the
prospective adoptive parents of a girl, H, who has been in their
uninterrupted care since
she was almost 3 months old and is now 7
years and 8 months old. They seek the review of various decisions of
the first respondent
(the magistrate) made during the course of
adoption proceedings which commenced in February 2012 but are still
ongoing, together
with certain declaratory relief. This application
is now opposed only by the second and third respondents who are H’s
biological
maternal grandfather and his current wife to whom H is not
biologically related. They also oppose the adoption proceedings and
seek to adopt H themselves.
[2]
Four decisions are sought to be reviewed.
First, that the second and third respondents’ application must
proceed despite the
absence of a letter of recommendation from the
provincial head of social development as prescribed by s 239(1)(d)
of the Children’s
Act 38 of 2005 (‘
the
Children’s Act’
). Second,
that the applicants make H available for psychological assessment by
a Ms Kolbe, a mental health professional appointed
by the second
and third respondents, or by another mental health professional of
their choice. Third, that the fourth respondent,
who is H’s
biological mother and whose consent to her adoption has already been
held to have been validly given, nonetheless
be admitted as a party
for the purpose of opposing the applicants’ adoption
application. Fourth, that by virtue of the definition
of a “parent”
in the Children’s Act the fourth respondent, whether as a
“party” or a “parent”,
is entitled to be
provided with legal representation in the adoption proceedings at all
times so as to avoid a miscarriage of justice.
[3]
The declaratory relief sought centres
principally on the legal status of a biological parent, who has
validly consented to the adoption
of his or her child, in subsequent
adoption proceedings. It is thus linked to some of the review relief.
The applicants ask this
court to declare that once a biological
parent has validly given consent, he or she is not a “party”
for purposes of
an adoption application as contemplated in s 239
of the Children’s Act, but
is
permitted to participate in the proceedings in terms of s 58
thereof ‘…
in circumstances
where the evidence led or argument addressed to the Court is relevant
to the proceedings and in the interests of
the child or children
concerned’.
[4]
They
also ask this court to declare
ultra
vires
Chapter 15 of the Children’s Act
[1]
the wording of a certain pro forma order created by the magistrate in
which parental responsibilities and rights of the biological
parent(s) are nonetheless retained
[2]
upon the granting of an adoption order as are ‘…
all
claims to contact with the child by any family member’.
During the course of the adoption proceedings the magistrate
indicated that she makes these orders from time to time and that they
do not necessarily form part of any post-adoption agreement as
contemplated in s 234 of the Children’s Act
[3]
.
[5]
Ancillary to the relief which the
applicants seek are orders for confidentiality; the finalisation of
the adoption proceedings before
another presiding officer (various
allegations are made concerning the magistrate’s alleged
partiality); and that the magistrate
bear the costs of this
application in her representative capacity. Alternative relief is
also sought in the event of this court
finding that the magistrate’s
decision to proceed with the second and third respondents’
adoption application in the
absence of the s 239(1)(d)
recommendation should not be set aside.
Factual
background
[6]
The facts which are relevant to the
determination of the issues, and which are largely common cause, are
as follows.
[7]
H
was born on 8 August 2008. At that time the fourth respondent
was an unmarried minor and her consent to H’s adoption
was
given in terms of s 18(4)(d) of the erstwhile Child Care Act 74
of 1983 (which Act was repealed when the Children’s
Act came
into effect on 1 April 2010). The fourth respondent was entitled
to provide consent in terms of s 18(4)(d) without
the assistance
of her guardian
[4]
but was in
fact assisted by her biological mother who was one of her guardians.
[8]
The fourth respondent agreed to the
applicants adopting H although her formal consent records that it was
to the adoption of H by
‘
a person
or persons unknown to me.’
The
fourth respondent signed the consent to adoption on 13 August
2008 (when H was 5 days old). On the same date magistrate
Du Toit of
the Bellville Children’s Court, in her capacity as a
commissioner of child welfare, made a determination that
such consent
had been furnished validly and voluntarily as required by s 18(5)
of the Child Care Act.
[9]
On 5 November 2008 H was placed in the
applicants’ care as prospective adoptive parents pursuant to a
recommendation by a
social worker to the Bellville Children’s
Court that they were ‘
geskik om
tydelik as veiligheidsouers op te tree totdat die finale
aannemingsbevel gemaak kan word’.
(The applicants are also the adoptive parents of a boy, J, who was
born on 4 May 2007 and placed in their care when he was
5 months
old). On 12 November 2008 a formal “detention” order
was made for H to remain in the applicants’
care pending the
finalisation of their adoption application. The matter was
transferred to the Wynberg magistrate’s court
for that
application to be finalised given that the applicants (and therefore
H) reside within that court’s jurisdiction.
[10]
The applicants completed their adoption
application on 5 June 2009. The relevant social worker’s
report to the Wynberg
Children’s Court was completed on 22 June
2010. On 14 October 2010 the applicants were provided with a
s 239(1)(d)
recommendation. On 29 March 2011 the magistrate
requested the social worker to make further attempts to locate H’s
biological
father, who is the fifth respondent, and he was traced
during October 2011.
[11]
On 19 October 2011 the magistrate,
without prior notification to the applicants, instructed them to
bring H to court in order
for the second and fifth respondents to
meet her. The applicants had major misgivings about this and
approached the High Court
on an urgent basis to suspend the fifth
respondent’s contact. An order was granted to this effect on
11 November 2011.
(The fifth respondent later consented to the
applicants’ adoption of H on 2 April 2014, and a
post-adoption agreement
has been concluded but will only take effect,
with the approval of the court, if the applicants succeed in their
adoption application
as prescribed by s 234(4) and (6) of the
Children’s Act).
[12]
The applicants’ adoption application
was scheduled to commence in the Wynberg Children’s Court on 27
February 2012.
However it did not proceed that day on the merits,
given issues relating to the fifth respondent.
[13]
On 28 June 2012 the second respondent
applied for H’s adoption. On 3 December 2012 the former
head of the department
of social development, Eastern Cape (in whose
area of jurisdiction the second respondent resides) purportedly
furnished him with
a s 239(1)(d) recommendation. (The current
head, Mr Stanley Khanyile, has deposed to an affidavit in these
proceedings in
which he states that the “approval” of
3 December 2012 was irregular and in any event not a s 239(1)(d)
recommendation).
[14]
A day after that “recommendation”
was provided to the second respondent, i.e. on 4 December 2012,
the fourth respondent
claimed that she had not validly consented to
H’s adoption, alternatively that she wished to withdraw such
consent.
[15]
On 25 October 2013 and after hearing
oral evidence the magistrate ruled that the fourth respondent’s
consent to the adoption
had been validly given and could not be
withdrawn. The fourth respondent has not sought to review or appeal
this ruling.
[16]
However
on 3 March 2014 the magistrate nonetheless ruled that the fourth
respondent ‘…
as
a parent who was opposing the adoption, had a right to continue to be
a party to the proceedings and be legally represented…’
[5]
.
Numerous postponements were occasioned by the fourth respondent’s
subsequent failure to secure legal representation. At
various stages
legal representation was secured and she participated in the
proceedings. It is apparent from the record that the
fourth
respondent sought contact with H and did not oppose the applicants’
adoption application.
[17]
On 5 March 2014 the magistrate ordered
that the second respondent’s adoption application was defective
because it did
not comply with s 231(a)(i) of the Children’s
Act in that the second respondent had not applied jointly with his
current
wife, the third respondent.
[18]
On 7 March 2014 the second and third
respondents jointly applied for H’s adoption. Their application
was not accompanied by
a s 239(1)(d) recommendation.
[19]
On 4 August 2014 Ms Von Solms
(chief social worker) and Ms D Puchert (senior social worker) of
Christelik-Maatskaplike
Raad, East London (CMR) addressed a letter to
the head of adoptions, child welfare, Cape Town, in relation to H as
follows:
‘
Our
telephone conversation on 1 August 2014 refers.
On
24 July 2014 a panel meeting was held at the offices of the
Department of Social Development Eastern Province as
[the
second respondent]
requested a
recommendation letter to adopt his granddaughter as he was informed
at the Department of Justice at Wynberg
[sic].
A discussion was held and the report
that went from CMR East London did not recommend a straight adoption
but rather that play therapy
should start first while
[the second respondent]
builds a
relationship with the concerned child. Mrs Mtsi from the Department
of Social Development is thus not able to provide a
recommendation
letter for adoption.
However,
the panel requested the possibility that the reports be made
available to CMR and the panel to assist
[the
second respondent]
. The question was
also raised of the possibility of
[H]
to start meeting her grandfather and
other family through play therapy as was recommended in the report
dated 12 June 2014.
Your
kind assistance in this matter will be appreciated.’
[20]
Referring to this letter, Mr Khanyile
states that:
‘
14.
…the CMR did advise the Head of Adoptions, Child Welfare, Cape
Town on 4 August 2014 that Ms Mtsi from my Department
(Ms Mtsi
is situated in my Provincial Office and is now responsible for
dealing with s 239(1)(d) recommendation letters in
my
Department) was not able to provide the recommendation letter for
adoption.’
[21]
According to Mr Khanyile the aforementioned
letter was also emailed to the clerk of the Wynberg Children’s
Court on 5 August
2014.
[22]
On 23 March 2015 CMR again emailed the
aforementioned letter to the clerk. (It appears that this letter had
previously not found
its way to the attention of the clerk of the
Children’s Court or the magistrate). At this stage the adoption
proceedings
(both those of the applicants and the second and third
respondents) were continuing in the Wynberg Children’s Court.
[23]
On 19 May 2015 the magistrate ruled that
the second and third respondents (for purposes of their own adoption
application) were
entitled to appoint Ms Cleophas Kolbe (a
psychologist) to conduct a further assessment of H (there is a
dispute as to whether
a previously appointed psychologist, Mr Terence
Dowdall had indeed been appointed for this purpose by the second
respondent’s
erstwhile attorneys on his instructions).
[24]
Thereafter and on 2 July 2015 the
magistrate ruled that the second and third respondents’
adoption application would
proceed despite the absence of the
s 239(1)(d) recommendation. She also ruled that the applicants
were to make H available
to Ms Kolbe for further assessment.
[25]
Dissatisfied with these rulings the
applicants obtained a High Court order on 21 July 2015 staying
the proceedings in the Children’s
Court and suspending the
magistrate’s order that H be made available to Ms Kolbe
pending finalisation of a High Court
review. The present application
was launched on 27 July 2015.
[26]
In Mr Khanyile’s affidavit, deposed
to on 21 October 2015, he expresses the firm view that the
provincial department
best suited to reconsider issuing a s 239(1)(d)
letter of recommendation to the second and third respondents is that
of the
Western Cape:
’
12.
Even though it is apparent from the founding affidavit from the
applicants that the Head of the
Department of Social Development of
the Western Cape has provided a s 239(1)(d) recommendation in
favour of the applicants,
I am of the view that the second respondent
should approach
[this department]
to
consider, given the fact that that the second respondent and his wife
are interested in adopting
[H]
,
whether that Department would be willing to consider this matter
afresh and/or whether it is satisfied that the provisions of
the Act
have been complied with given the views expressed by the second
respondent and in fact the biological father of
[H].’
[27]
In an affidavit deposed to by Mr Robert
MacDonald, the provincial head of the department of social
development, Western Cape on
23 February 2016, he stated that no
such application has yet been lodged by the second and third
respondents. Mr MacDonald
confirms that the applicants
previously met the relevant requirements stipulated in the Children’s
Act and their s 239(1)(d)
recommendation was therefore provided
(on 14 October 2010). It is not suggested by any of the parties that
the applicants do not
still meet these requirements.
Issues
to be determined
[28]
It is against this background that the
issues may be crystallised as follows:
28.1
Whether a s 239(1)(d) recommendation is a peremptory requirement
for an adoption application to
be entertained by a court (if it
is, then the magistrate’s rulings that the second and third
respondents were entitled to
appoint Ms Kolbe, and that H be
made available for assessment by Ms Kolbe, would fall away because
they were made during the
course of proceedings that were not
competent);
28.2
Whether a parent who has validly consented to the adoption of his or
her child is nonetheless a party to
subsequent adoption proceedings
for purposes of the Children’s Act, which by necessary
implication would mean that he or
she is entitled to oppose the
child’s adoption by a particular prospective adoptive parent or
parents, given that a “party”
to proceedings must be able
to participate and seek relief if he or she so wishes; or whether
such a person is only permitted the
participatory rights provided by
s 58 of the Children’s Act;
28.3
Irrespective of whether such a person is a “party” or a
“parent” for purposes of
subsequent adoption proceedings,
he or she must at all times enjoy legal representation to avoid a
miscarriage of justice (not
to the child but to the specific person
concerned); and
28.4
The competency of the pro forma orders which the magistrate makes
from time to time.
S 239(1)(d)
recommendation
[29]
S 239(1) of the Children’s Act sets
out the statutory requirements for an adoption application:
‘
239
Application for adoption order
(1)
An application for the adoption of a
child
must
---
(a)
be made to a children’s court
in the prescribed manner;
(b)
be accompanied by a report, in the
prescribed format, by an adoption social worker containing ---
(i)
information on whether the child is
adoptable as contemplated in section 230 (3);
(ii)
information on whether the adoption
is in the best interests of the child; and
(iii)
prescribed medical information in
relation to the child.
(c)
be accompanied by an assessment
referred to in section 231 (2)
(
d
)
;
(d)
be accompanied by a letter by the
provincial head of social development recommending the adoption of
the child
; and
(e)
contain such prescribed
particulars.’
(emphasis
supplied)
[30]
In
Natal
Joint Municipal Pension Fund
v
Endumeni Municipality
[6]
the
Supreme Court of Appeal summarised the law of interpretation as
follows:
‘…
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective, not subjective.
A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose
of the document. Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible
or businesslike for the
words actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between
interpretation and
legislation; in a contractual context it is to make a contract for
the parties other than the one they in fact
made. The “inevitable
point of departure is the language of the provision itself”,
read in context and having regard
to the purpose of the provision and
the background to the preparation and production of the document.’
[31]
In
the matter of
In
re XN
[7]
the South Gauteng High Court, on special review, held that while the
provisions of s 239(1)(d) are peremptory, non-compliance
may be
condoned only in exceptional circumstances and if warranted:
‘
[13]
In the child commissioner’s opinion, the s 239(1)(d) letter was
“a letter of recommendation”, and the –
“
person
drafting this letter has the same information as the commissioner of
the children’s court and as a result recommends
the adoption or
not… Surely the court is not bound to the letter of the
recommendation and may overrule it should it be
necessary. As a
result I fail to see why this letter should hijack the finalisation
of the adoption proceedings”.
[14]
It must be emphasised that in terms of s 239(1)(d) of the Act “an
application for the adoption of a child must be accompanied
by a
letter by the provincial head of social development recommending the
adoption of the child”. The requirement of the
s 239(1)(d)
letter is therefore peremptory. It reaffirms and recognises the role
to be played by governmental institutions
in the protection and
wellbeing of children within our borders and those leaving them. The
legislature deemed it necessary in the
best interests of children to
include the s 239(1)(d) letter as a formal requirement in terms of
the Act, thereby involving oversight
by public officials in the
social worker’s assessment process, clearly a commendable
process. The stringent provisions of
the Act encompass protective
mechanisms in regard to adoptions, which are clearly to prevent what
is becoming a reality that children
are being used for human
trafficking, as well as for illegal purposes, and it is the duty of
the courts to ensure that such practices
do not result from
adoptions.
[15]
However, it appears that there were exceptional circumstances present
in this case. The child commissioner found herself in
an invidious
position in this adoption application as a result of the testimony of
the social worker, and utilised the provisions
of s 48(a) of
the Act to condone the non-filing of the s 239(1)(d) letter because
it was clearly in the best interests of the child,
and the exigencies
of the situation demanded that she grant the adoption. The family was
relocating and any delay in the adoption
proceedings would have
caused incalculable emotional distress to the family.
[16]
This court addressed an epistle to the department for it to provide
reasons for the non-compliance of the s 239(1)(d)
letter, and a
letter supporting and recommending the adoption addressed to the
children’s court by the department materialised,
almost a year
after the order for adoption was granted. It appears that had the
formal requirements of the s 239(1)(d) letter not
been dispensed with
by the child commissioner, the child would have been
highly prejudiced, as he would not have accompanied
his mother and
the applicant to Trinidad. The adoption of the child would have been
delayed. Such a delay would clearly not have
been rational or
reasonable in the circumstances of this case.
…
[19]
However, although the best interests of the child cannot be
sacrificed at the altar of formalism, if the requirement
of the
s 239(1)(d) is not complied with, the objectives of the Children’s
Act will be lost. The children’s courts are
charged with
overseeing the wellbeing of children, examining the qualifications of
applicants for adoption and granting adoption
orders. To carry out
their functions effectively and conscientiously they rely on the
efficient collaboration of all stakeholders,
the department and
social workers to comply with their respective obligations in terms
of the Act. Non-compliance with the
provisions of the Act will
delay the speedy facilitation of adoption applications, bringing the
administrative processes to a halt,
if not into disrepute. It should
be a concern when those who are empowered by legislation to fulfil
their functions appear recalcitrant,
especially in matters involving
the vulnerable members of our society. Nevertheless, in my view this
does not give the child commissioner
carte blanche to condone
non-compliance with the provisions of the Act. This can only be done
if the circumstances are exceptional
and warrant it, as in this
case.’
[8]
[32]
The facts at the magistrate’s
disposal when she ruled on 2 July 2015 that the absence of the
s 239(1)(d) recommendation
should not delay the second and third
respondents’ adoption application were the following.
[33]
H
had been in the applicants’ uninterrupted care since 5 November
2008 when she was just under 3 months old. Their adoption
application
was completed on 5 June 2009, more than 6 years previously, and
they had obtained the required s 239(1)(d)
recommendation
following upon the implementation of the Children’s Act
[9]
as far back as 14 October 2010.
[34]
The second respondent only launched his
initial adoption application on 28 June 2012 (the reasons for
the delay are in dispute
but in my view are not materially relevant
in light of the subsequent chronological facts). The second
respondent was made aware
on 5 March 2014 that his initial
adoption application was defective. The joint application of the
second and third respondents
followed 2 days later on 7 March
2014.
[35]
On 4 August 2014 the clerk of the
Children’s Court was notified that the second and third
respondents’ s 239(1)(d)
recommendation would not be
forthcoming from the department of social services, Eastern Cape.
Assuming for present purposes that
this notification did not reach
the magistrate, it must surely have done so by 23 March 2015
when it was again transmitted
at the specific request of the clerk of
the Children’s Court. Neither the second nor third respondents
took any steps thereafter
to challenge what was effectively a refusal
by the department to furnish that recommendation. Neither the second
nor third respondents
requested that the required recommendation be
dispensed with by the magistrate in terms of s 48(1)(a) of the
Children’s
Act and that their adoption application should
proceed on that basis.
[36]
The magistrate reasoned that the second
respondent’s adoption application had been ongoing for 3 years;
that he had previously
been issued with a s 239(1)(d)
recommendation for what turned out to be a defective application;
that the prejudice which
the second respondent would suffer should he
not be permitted a further opportunity to secure the recommendation
would be enormous;
and that ‘
the
court intends doing whatever it can in the circumstances, which would
be to subpoena the HOD, if necessary, with the intervention
of the
Minister of Social Development’s office to ensure that such
letter is
[acquired]’
.
Notwithstanding the communications from CMR to the clerk of the
Children’s Court of 5 August 2014 and 23 March 2015,
the
magistrate appears to have concluded that the department was
inexplicably dragging its heels. There is no evidence that this
was
the case.
[37]
The
rationale for the magistrate’s ruling was
[10]
‘
In
the circumstances, I am satisfied that this defect in Mr Mbinda’s
application can still be remedied. I do not believe it
is reasonable
not to give him any further time to remedy that as long as it is a
very reasonable period that is afforded to him.
I believe that there
appears to be a strong likelihood that a favourable decision will be
made in this regard. And in the circumstances,
I am going to allow
him to proceed with his adoption application. This matter is far from
finished. If by the time he reaches the
end of his case this letter
is not forthcoming, the Court will, at that point, decide whether or
not to allow any further time
for such certificate. In all
likelihood, [I] may then, in line with the Ndala decision, …
apply the principles of the Ndala
decision and decide to proceed
without that. But I am not going to pre-judge this matter. I will
deal with it at the appropriate
stage.’
[38]
In my view the magistrate misinterpreted
both s 239(1)(d) and the findings in the matter of
In
re XN
on two fundamental bases. First,
the court specifically warned against presiding officers in
Children’s Court matters assuming
that they have carte blanche
to condone non-compliance with the provisions of the Children’s
Act
even in
circumstances where the relevant stakeholders (in that case, the
provincial department of social development) fail to comply with
their statutory obligations. It was held that even in those
instances, the circumstances which would permit condonation for
non-compliance
must be exceptional and warranted. Second, in the
present case it was not a question of the
absence
of a recommendation (as occurred in
In
re XN
) but rather a refusal to provide
one. To the extent that the refusal of the recommendation was
considered to be wrong, it was the
second and third respondents who
should have pursued their review remedies. It was not for the
magistrate to allow their adoption
application to nonetheless proceed
because in her view this was a “defect” which could
either be remedied or reconsidered
by her at a later stage; and
moreover her opinion regarding a favourable outcome for the second
respondent did not appear to be
based on any objective facts.
[39]
Here, the magistrate entertained the second
and third respondents’ adoption application for 5 months before
there was any
indication whether a s 239(1)(d) recommendation
would even be forthcoming (i.e. from 7 March 2014 until 5 August
2014). She furthermore treated that application as being properly
before her for more than a year (even after the clerk was informed
in
March 2015 that such recommendation would not be forthcoming) until
ruling on 2 July 2015 that the application should nonetheless
proceed for the reasons already mentioned.
[40]
However, the second and third respondents’
adoption application was not properly before the magistrate; no
exceptional circumstances
were advanced to justify condonation of the
peremptory s 239(1)(d) recommendation; and in light of the
department’s
refusal to provide one, condonation would in any
event not have been competent.
[41]
The magistrate’s ruling thus falls to
be set aside. It follows that her rulings made in respect of the
further assessment
of H by Ms Kolbe must also be set aside.
Participation
of parent who has validly consented to adoption
[42]
The
magistrate appears to have admitted the fourth respondent as a party
to the adoption proceedings notwithstanding the fact that
the consent
signed by her was in respect of ‘
a
person or persons unknown to me’
(thus an undisclosed adoption) and reflects that the fourth
respondent was informed that ‘
(ii)
she is not entitled to be present when the application for adoption
is considered unless allowed to be present in the interests
of the
child at the discretion of the court’
.
[11]
Furthermore, the fourth respondent was admitted as a party
after
the magistrate had already ruled that her consent had been validly
given, and in these circumstances the fourth respondent should
not
have been permitted to “oppose”.
[43]
A “parent” is defined in the
Children’s Act as excluding
inter
alia
one whose parental
responsibilities and rights in respect of a child have been
terminated. Although in my view the fourth respondent’s
parental responsibilities and rights would only fully terminate upon
the granting of an adoption order, what needs to be considered
is
what role, if any, a person in the position of the fourth respondent
would have in subsequent adoption proceedings.
[44]
Having consented, her parental
responsibilities and rights became curtailed because certain of such
rights were conferred, initially
on H’s place of safety, and
thereafter upon the applicants pending finalisation of their
application for adoption. Implicit
in a consent to adoption is an
election not to exercise any parental rights or to meet any parental
obligations in the future.
Also implicit in a consent to an
undisclosed adoption (by ‘
a person
or persons unknown to me’
) is the
election not to have any say in who the prospective adoptive parents
should be (even though the evidence in the present
matter is that the
fourth respondent in fact approved the applicants as prospective
adoptive parents before H was initially placed
in their care).
[45]
However the legislature appears to have
recognised that persons such as those in the position of the fourth
respondent should nonetheless
retain the right to adduce evidence in
subsequent adoption proceedings, given s 58 of the Children’s
Act which reads
as follows:
‘
58
Rights of persons to adduce evidence, question witnesses and produce
argument
The
following persons have the right to adduce evidence in a matter
before a children’s court and, with the permission of
the
presiding officer of the children’s court, to question or
cross-examine a witness or to address the court in argument:
(a)
a child involved in the matter;
(b)
a parent of the child;
(c)
a person who has parental
responsibilities and rights in respect of the child;
(d)
a care-giver of the child;
(e)
a person whose rights may be
affected by an order that may be made by the court in those
proceedings; and
(f)
a person who the court decides has a
sufficient interest in the matter.’
[46]
On a plain reading of the aforementioned
section a person contemplated therein has the right to place evidence
before the presiding
officer, but may only question, cross-examine or
address the court in argument with the permission of the court. The
presiding
officer is thus vested with a discretion which would have
to be exercised judicially.
[47]
It
would seem that the magistrate conflated “party” and
“parent” because, although she ruled on 3 March
2014
that the fourth respondent had a right to continue as “a party
to the proceedings”, on 17 June 2014 she handed
down a further
ruling on the fourth respondent’s right to be present, but
relied on s 57 and s 58 of the Children’s
Act:
[12]
‘
Chapter
15, the adoption chapter, does not have any specific sections that
relate to procedures apart from reference to the forms
that are
involved and therefore the provisions of the sections in chapter four
would then relate to procedures in adoption matters
as well.
Section
57 of the Act, which falls under chapter four, speaks of the
compulsory attendance of persons involved in proceedings and
mentions
that:
“
The
clerk of the Children’s Court may, by written notice in the
prescribed manner, request a party in a matter before a Children’s
Court, a family member of a child involved in the matter or a person
who has another interest in the matter, to attend the proceedings
of
the Children’s Court.”
And
then if one looks at the definition of a party, that includes a
parent. If one looks at a family member, that again includes
a
parent. Section 58 then speaks of the right of persons to
adduce evidence, question witnesses and produce argument. And
it says
that:
“
The
following persons have the right to adduce evidence in a matter
before a Children’s Court and, with the permission of
the
Presiding Officer, to question or cross-examine a witness or to
address the Court in argument”
And
it includes in subsections (a) to (f), a parent of the child. So in
terms of Section 58 a parent specifically has the right
to adduce
evidence in a matter before a Children’s Court.
Apart
from not elaborating on the rules as to who may or may not attend
proceedings, the chapter that deals with adoptions does
not exclude
the attendance of parents who have given consent to the adoption.
…
I
do not agree…that there is anything in the regulations or the
Act that states that once a parent has given consent to the
adoption
their presence is not required or that they may not attend the
proceedings. It is clear from Section 58 that that parent
continues
to have the right to attend.
And
if the mother then wishes to be present in these proceedings, as she
has indicated throughout that she does wish to be, regardless
of
whether or not she wishes to oppose the adoption, then
THE
COURT WILL PERMIT HER TO BE PRESENT AS IS HER RIGHT IN TERMS OF THE
ACT
.’
[48]
Implicit
in the ruling that the fourth respondent be admitted as a “party”
to the adoption proceedings must have been
the magistrate’s
view that she has an adequate interest in its subject matter; not a
technical concept but rather a direct
interest in the relief sought,
not too far removed but actual, not abstract or academic, and
current, not hypothetical.
[13]
[49]
In
my view, the fourth respondent, at the time she was admitted as a
party, met none of these requirements. She had already been
found to
have voluntarily relinquished her parental rights and
responsibilities; and there was no longer any “direct”
interest that she could claim to have had. Given the particular facts
of this matter she also had no “current” interest
because
she had consented to an undisclosed adoption. A court cannot confer
locus
standi
upon
a party, who otherwise has none, on the ground of expediency and to
obviate impractical and undesirable procedures.
[14]
At best she was only permitted the participatory rights provided in
s 58, something which appears to have been recognised
later by
the magistrate in her ruling of 17 June 2014.
[50]
The magistrate’s ruling that the
fourth respondent be admitted as a party to the proceedings thus also
falls to be set aside.
[51]
However the fourth respondent has, as a
consequence of such ruling, already participated in the adoption
proceedings, particularly
in relation to the validity of her consent,
and her stated wish that all she seeks is some form of contact with
H. Should the fourth
respondent nonetheless wish to place further
evidence before the Children’s Court she may do so in terms of
s 58 of
the Children’s Act, subject of course to the
discretion vested in the presiding officer in terms of that section.
Legal
representation for the fourth respondent
[52]
S 54 of the Children’s Act provides
that a person who is a
party
in a matter before a Children’s Court is entitled to appoint a
legal practitioner of his or her own choice and at his or
her own
expense. The magistrate went to considerable lengths to assist the
fourth respondent in securing legal representation both
prior to and
after her ruling that she be admitted as a party to the proceedings.
Given the wording of s 54 of the Children’s
Act it would
seem that the magistrate went beyond the call of duty.
[53]
I have found that the fourth respondent
should not have been admitted as a party, but that she is a
parent
for purposes of s 58 of the Children’s Act. If she wishes
to avail herself of the rights conferred upon her therein
with the
assistance of legal representation then, given the history of this
matter and in order to prevent any further delay, she
must herself
secure such legal representation in good time before the matter
resumes in the Children’s Court.
[54]
In
Magistrate
Pangarker v A Botha and Another
[15]
it was stated that the right to legal representation is a corollary
of the right of access to justice and that the denial of such
right
would accordingly have ‘
wide-ranging
consequences for the nature and experience of justice’
[16]
.
However legal representation in each particular matter must also be
weighed against the rights and potential prejudice to other
affected
parties.
[55]
It is not in dispute that since December
2012 postponements and delays totalling some 9 months were occasioned
due to issues pertaining
to securing legal representation for the
fourth respondent (and the fifth respondent until April 2014),
coupled with the magistrate’s
refusal to permit the proceedings
to continue when no representative was available and even after legal
aid was refused. When the
fourth respondent was represented, court
time was taken up by her legal representative who cross-examined
witnesses and addressed
the court on the basis that she was a party
to the proceedings and “opposed” the applicants’
adoption application.
Given the history of this matter, the scales
must now tip in favour of the applicants who, along with H, have a
right to resolution
without further delay.
[56]
Having regard to the totality of the
circumstances it is my view that the magistrate’s rulings to
entertain the applicants’
adoption application only when the
fourth respondent was legally represented constituted a reviewable
irregularity and this too
must be set aside.
Competency
of pro forma adoption order
[57]
S 242(2)(a) of the Children’s Act
provides that an adoption order confers full parental
responsibilities and rights in respect
of the adopted child upon the
adoptive parent; and s 242(3) stipulates that ‘
an
adopted child must for all purposes be regarded as the child of the
adoptive parent and an adoptive parent must for all purposes
be
regarded as the parent of the adopted child’.
[58]
S 242(1) however provides that:
‘
242
Effect of adoption order
(1)
Except
when
provided otherwise in the order or in a post-adoption agreement
confirmed by the court an adoption order terminates---
(a)
all parental responsibilities and
rights any person, including a parent, step-parent or partner in a
domestic life partnership,
had in respect of the child immediately
before the adoption;
(b)
all claims to contact with the child
by any family member of a person referred to in paragraph (a);
(c)
all rights and responsibilities the
child had in respect of a person referred to in paragraph (a) or (b)
immediately before the
adoption; and
(d)
any previous order made in respect
of the placement of the child.’
(emphasis
supplied)
[59]
The applicants challenge the competency of
a pro forma order which the magistrate advised that she makes from
time to time and which
includes the following:
‘
THE
APPLICATION IS ACCORDINGLY GRANTED.
2.
The surname………………..is
conferred or / retained by the child.
3.
The Post Adoption Agreement, Exhibit…….., is made an
order of this court.
4.
It is further ordered that:
(a)
The parental responsibilities and rights that the father of the
child, to wit………
(name),
had in respect of the child immediately before the Adoption;
(b)
all claims to contact with the child by any family member of a person
referred to in paragraph (a); and/or
(c)
all rights and responsibilities the child had in respect of a person
referred to in paragraph (a) or (b) immediately before
the adoption
SHALL
NOT BE TERMINATED
The
court, in its discretion, makes these orders to this effect without
giving a hearing to any person. Prescribed documents to
be forwarded
as soon as may be to the Registrar for the registration of the
adoption.’
[60]
Louw,
in
Child
Law in South Africa
[17]
,
notes that an adoption order has the effect of creating a legal
relationship between the adoptive parent and the adopted child
in the
interests of the child. She goes on to say that:
‘
adoption
provides a child with a constitutionally entrenched form of care and
protection that is unsurpassed by any other form of
permanent
placement in securing stability in a child’s life.’
[18]
[61]
In the event that an adoption order
stipulates that the former parent shall nonetheless retain full or
partial parental responsibilities
and/or rights post adoption, then
the adoptive parents will not acquire full parental responsibilities
and rights. The effect of
such an order is therefore something less
than adoption; and what needs to be considered are the circumstances
in which such orders
would be permissible.
[62]
In
Centre
for Child Law v Minister of Social Development
[19]
the applicant sought an order declaring
inter
alia
that s 242 of the Children’s Act does not automatically
terminate all the parental responsibilities and rights of the
guardian of a child whose spouse or permanent domestic life partner
seeks to adopt the child. It was held that
[20]
:
‘
[14]
The advice allegedly given by officials of the Children’s Court
to prospective applicants for adoption that, in
terms of s 242 of the
Act, the granting of an application for adoption by a step-parent
will automatically terminate all rights
and responsibilities of the
parent in respect of the child, ignores the exception provided for in
the preamble to s 242. In terms
thereof, an adoption order terminates
those rights, “(e)xcept when provided otherwise in the order”.
The Children’s
Court therefore has a discretion to order that
the rights and responsibilities of a child’s parent or guardian
will not terminate
upon the grant of an adoption order in favour of
the step-parent. It will, save in exceptional circumstances, clearly
be in the
best interests of the child that such an order be made. The
Children’s Court is obliged to function in a manner which in
each case promotes the best interests of the child and should, except
where there are sound reasons not to do so, make an order
that the
granting of an adoption order in favour of a step-parent will not
terminate the responsibilities and rights of the child’s
parent
or other guardian.’
[63]
It
is entirely understandable that the court reached that conclusion
given the clear exceptional circumstances. However, having
regard to
the provisions of s 242(2)(a) and (3) it could not, in my view,
have been intended by the legislature that s 242(1)
should otherwise
be interpreted as conferring an unfettered discretion on a presiding
officer in a Children’s Court to issue
wide-ranging orders
eroding the legal concept of adoption, particularly without even
affording those to be affected any hearing.
Were that intended, then
not only would those sections dealing with the effect of adoption be
rendered largely superfluous, but
there would have been no reason for
the legislature to limit what can be contained in post-adoption
agreements in terms of s 234
to communication (including
visitation) and the provision of information; nor would the
additional powers of a Children’s
Court be defined in s 48.
[21]
Proper heed must be paid to the legal effect of an adoption order,
namely that the legal ties between a parent and a child are
severed.
A finding that the invoking of the exception in s 242(1) is
justified would have to be reached on a proper consideration
of all
relevant evidence and would have to be warranted in the particular
circumstances.
[64]
It follows that the
pro
forma
order created by the magistrate
must be declared
ultra vires
the provisions of Chapter 15 of the Children’s Act.
Costs
[65]
As previously stated, the applicants seek a
costs order against the magistrate in her representative capacity. In
the exercise of
my discretion I do not believe that in the particular
circumstances of this matter such an order is warranted.
Conclusion
[66]
S 6(4) (b) of the Children’s Act
stipulates that in any matter concerning a child a delay in any
action or decision to be
taken must be avoided as far as possible.
Given the history of this matter, and without it being necessary to
make any finding
in relation to the allegations of partiality on the
part of the magistrate, it is my view that it would be in the best
interests
of H, as well as the administration of justice, to order
that the record of proceedings in the Children’s Court to date
shall
stand as such, without the applicants’ adoption
application having to commence
de novo
,
but for such application to be finalised without further delay before
another presiding officer.
[67]
In the result the following order is
made:
1.
The following decisions or rulings
of the first respondent in the adoption proceedings pending in the
Children’s Court, Wynberg,
are hereby reviewed and set aside:
1.1
That the second and third respondents’ application for the
minor child’s adoption proceed
despite the absence of a letter
of recommendation from the provincial head of social development as
prescribed by section 239(1)(d)
of the Children’s Act 38 of
2005 (‘
the Children’s Act’
);
1.2
That the applicants make the minor child available for psychological
assessment by Ms Cleophas Kolbe
or such other mental health
professional as may be appointed by the second and third respondents;
1.3
That the fourth respondent be admitted as a party to the applicants’
adoption application; and
1.4
That the fourth respondent is entitled to be provided with legal
representation in such application
at all times.
2.
It is declared that:
2.1
The fourth respondent is not a party to the applicants’ pending
adoption application;
2.2
A parent who gives consent in terms of s 233 of the Children’s
Act is not a party for the purposes of
an adoption application as
contemplated in s 239 of such Act, but is permitted to participate in
such proceedings as envisaged
in terms of s 58 of such Act;
2.3
The ‘
order’
on page 2 of the
pro forma
document created by the first respondent and annexed to the first
applicant’s founding affidavit marked “JGB3”
is
ultra vires
Chapter 15 of the Children’s Act in that:
(a)
it constitutes an impermissibly wide exercise of the discretion of
the presiding officer provided for
in section 242(1) of the Act;
(b)
it purports to confer something less than full parental
responsibilities and rights on the adoptive
parents of an adopted
child as set out in section 242(2) of such Act; and
(c)
it is in conflict with the provisions of section
242(3) of such Act, and with the legal concept of adoption.
3.
The Chief Magistrate, Wynberg, or such other magistrate as she, in
her discretion, may appoint to hear the
matter, shall finalise the
applicants’ application under case no 14/12/2-22/09 for the
adoption of the minor child H within
3 (three) months from the date
of granting of this order; and for this purpose the record of
proceedings to date shall stand as
the record for purposes of
finalisation of such application;
4.
The fourth respondent shall be entitled to be present at such further
proceedings, but only to the extent permitted
by section 58 of the
Children’s Act, and it shall be her responsibility to timeously
secure and retain legal representation
should such representation be
her choice;
5.
The identities of the applicants, the minor child and the second to
fifth respondents shall not be disclosed;
and
6.
No order is made as to costs.
J
I CLOETE
SAMELA
J
I
agree.
M
I SAMELA
[1]
Those sections of the Children’s Act dealing with
adoption.
[2]
There will of course be circumstances where the
immediately preceding holder of parental responsibilities and rights
is not the biological parent, but the same applies.
[3]
S 234 only permits communication, contact and the
provision of information by agreement, and not the retention of
any
parental responsibilities and rights.
[4]
Such assistance is now required in terms of s 233(1)(a)
of the Children’s Act.
[5]
Application papers para 91, p47, Item OOO review
bundle, p914.
[6]
2012 (4) SA 593
(SCA) para [18].
[7]
2013 (6) SA 153
(GSJ) – also referred to in the
adoption proceedings as
Ndala
given its then unreported title.
[8]
S 48(1)(a) of the Children’s Act affords the
child commissioner the additional power to grant auxiliary relief
in
respect of any matter contemplated in s 45(1), which in turn relates
inter
alia
to the adoption of a child. ‘
Auxiliary’
is defined in the Concise Oxford English Dictionary (10
th
ed, revised) as meaning ‘
providing
supplementary or additional help and support’.
[9]
Which introduced this requirement.
[10]
Item DDD review record bundle, para 139, p69 of the
application papers.
[11]
Form 12 of the regulations promulgated under the (now
repealed) Child Care Act, item F of review record, p28.
[12]
Item PP review bundle p461.
[13]
Erasmus
Superior
Court Practice
Vol 2 at D1 – 186.
[14]
Gross
and Others v Pentz
[1996] ZASCA 78
;
1996 (4) SA 617
AD at 632 F.
[15]
2015 (1) SA 503 (SCA).
[16]
At para [34].
[17]
T Bouzaart:
Child
Law in South Africa
133.
[18]
At 133-134.
[19]
2014 (1) SA 468 (GNP).
[20]
At para [14].
[21]
S 46 defines the orders that a Children’s Court may
make; and s 48 its additional powers.