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[2020] ZAWCHC 25
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C D and Another v Department of Social Development (5570/2020) [2020] ZAWCHC 25; [2020] HIPR 129 (WCC) (14 April 2020)
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Certain
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THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No:
5570/2020
Before
the Honourable Ms Justice Meer
Hearing:
08 and 09 April 2020
Judgment
Delivered: 14 April 2020
In
the matter between:
C
D
First Applicant
M
D
Second Applicant
and
DEPARTMENT
OF SOCIAL DEVELOPMENT
Third Defendant
JUDGMENT
MEER
J.
[1]
On 6 April 2020 the Applicants applied on an urgent basis for
the Regulations published by the Minister of Cooperative
Governance
and Traditional Affairs in terms of Section 27 (2) of the Disaster
Management Act no 57 of 2002 ( “the Act”)
on 2 April
2020, prohibiting the movement of persons between provinces during
the Lockdown, to be dispensed with. The purpose of
the application
was to enable the First or the Second Applicant to travel from Cape
Town to Bloemfontein and back, to fetch their
children L D aged 10
and M D aged 7 ( “the children”) from their grandparents’
home.
[2]
The children had travelled to Bloemfontein on 22 March 2020 during
the school holidays for a brief visit and were expected to
return to
Cape Town before the start of the school term on 31 March 2020. The
Lockdown intervened at midnight on 26 March 2020
and the children
found themselves locked down with their grandparents in Bloemfontein.
The Applicants are divorced. In terms of
their divorce order
incorporating a consent paper and parenting plan, arrangements are in
place for the children to move between
the Applicants.
[3]
The applicable Regulations which the relief as framed in the notice
of motion sought to “be dispensed with” are
Regulations 3
(b) (i) and (iii) published in Government Gazette No 43199, which
pertain to restrictions on movement of persons
and goods
between provinces and between metropolitan and district areas. The
Regulations amend previous Regulations of 30
March 2020 and state in
relevant part:
“
3.
Regulation 11B of the Regulations is hereby amended by-
(a)
…………
.
(b)
The
substitution for paragraph (a) of subregulation (1) of the following
paragraph:
“
(a)
For the period of lockdown-
(i)
every
person is confined to his or her place of residence, unless strictly
for the purpose of performing an essential service, obtaining
an
essential good or service, collecting a social grant, pension or
seeking emergency, life-saving or chronic medical attention.
(ii)
……………
.
(iii)
Movement
between provinces and between metropolitan and district areas is
prohibited except-
(aa) for essential
workers who have to travel to and from work.
(bb) for
transportation of cargo from ports of entry to their intended
destination, on condition that necessary precautions have
been taken
to sanitise and disinfect such cargo;
(cc) for the
transportation of the mortal remains; and
(dd)
for attendance of a funeral as provided for and on the conditions set
out in subregulation (8)”
[4]
The movement of children between holders of parental responsibilities
during the Lockdown was specifically regulated by Directions
in terms
of the Act emanating from the Minister of Social Development. A first
set of Directions issued on 30 March
2020 prohibited the
movement of children between co – holders of parental
responsibilities during the Lockdown period. The
Directions were
amended on 7 April 2020 to introduce an exception to the prohibition,
which permits the movement of children in
certain circumstances. The
amended Direction 1 (c) (“the Amended Direction”) states:
“
1.
Paragraph 6 of the Directions is hereby amended by-
(c) the substitution
in subparagraph (m) for items (i) and (ii) of the following items:
“
(i)
Movement of children between co-holders of parental responsibilities
and rights or a caregiver as defined in Section 1
(i) of the
Children’s Act is prohibited, except where arrangements are in
place for a child to move from
one
parent to another
in terms of,
(aa)
a court order; or
(bb)
where a parental responsibilities and rights agreement or parenting
plan, registered with the family advocate is in existence,
provided that, in
the household to which the child is to move, there is no person who
is known to have come into contact with, or
is reasonably suspected
to have come into contact with, a person known to have contracted, or
reasonably suspected to have contracted,
COVID -19;
(ii) the parent or
caregiver transporting the child concerned must have in his
possession, the court order or the agreement referred
to in sub-items
(aa) and (bb), respectively, or a certified copy thereof”
The
Regulations and Directions above are thus the legal context
applicable to this matter.
[5]
The Respondent opposed the application in an affidavit by Mr Dladla
its Chief Director, Legal Services on the basis
inter
alia
that
the Amended Direction does not create an exception relating to
movement of children from a parent to a caregiver or vice
versa. He
also took issue with the fact that between 23 and 27 March 2020, no
arrangements were made to move the children, and
that the application
was only launched on 6 April.
[6]
On 8 April 2020 I heard the application. I found that there was no
prohibition
on
the movement of the children as they fell within the exception of the
Amended Direction, given that there is a court order with
arrangements in place for their movement, as per the decree of
divorce referred to above. I granted the following order in
terms of the exception authorising
inter alia
the First
Applicant to travel to Bloemfontein to fetch his children and return
to Cape Town with them:
1.
“
The
First-and Second Applicant are co-holders of Parental
Responsibilities and Rights in respect of their minor children, L D
and
M D, (hereinafter “
the
children”
),
as referred to in Sections 18(2)(a) and 18(2)(b) of the Children Act.
2.
An
order in terms of the exception contained in Direction 1 (c) (i) of
the Directions issued by the Minister of Social Development
dated 7
April 2020, (No. R. 455 Government Gazette No. 43213), in terms of
Regulation 10 (8) of the Regulations made under
Section 27
(2) of the
Disaster Management Act 57 of 2002
, is granted as follows:
2.1
The
First Applicant is authorised and directed to travel between
provinces and between district areas, from his residence situated
in
the Western Cape to the First Applicant’s parents’
residence at[…], Heuwelsig, Bloemfontein for the sole
purpose
of the movement of the children;
2.2
The
First Applicant is authorised and directed to fetch the children
at[…], Heuwelsig, Bloemfontein, and to travel back with
them
to the Western Cape, to the residence of the First Applicant;
2.3
The
First Applicant is permitted to sleep over for 1 (one) night after
travelling to Bloemfontein at the paternal grandparents’
home
at the above mentioned address, after which the First Applicant and
the children shall return to the First Applicant’s
address;
2.4
The
First Applicant shall travel to Bloemfontein in the First Applicant’
s
7
-seater Land Rover Discovery vehicle and the First Applicant and the
children shall return to Cape Town in the said vehicle;
2.5
The
children will subsequently only be allowed to travel from the First
Applicant’s address to the Second Applicant in the
event that
the Second Applicant is in possession of a certificate by an
independent medical practitioner indicating that she has
tested
negative for the Covid-19 virus.
3.
The
Applicants shall comply with
the
current provisions of the current Regulations and Directions that
have been issued by the Minister of Transport (as authorized
in terms
of Regulations issued in terms of
ss27
(2) of the
Disaster Management
Act) pertaining
to the transportation of persons in private vehicles
and shall comply with the provisions of any Regulations and/or
Directions
that may be issued by the Minister of Transport during the
period of the lockdown.
4.
The
Applicants shall cooperate fully with each other to give effect to
the transport arrangements that comply with the relevant
Regulations
and all Directions in order for contact arrangements to be
implemented.
5.
The
Applicants shall, in the best interests of the children, provide
their full cooperation during this period to ensure that effect
is
given to the provisions of this Court order and the Regulations;
6.
The
Applicants undertake to ensure the safety of the children at all
times and to ensure, in the event of either of them working
at any
time, to follow the relevant health guidelines upon their return home
to minimize the risk of exposing the children to the
COVID-19 virus.
7.
This
order dispenses
with
any further need for permit(s) to travel.
8.
The
Respondent shall pay the costs of this application”.
The
reasons for my order appear from what is set out below.
[7]
The Applicants are the biological parents of the children, and
pursuant to a divorce order, as aforementioned, arrangements
and a
parenting plan are in place as envisaged in the Amended Direction,
for the children to move between the Applicants. The Applicants
and
their children reside in Cape Town. The First Applicant’s
parents, the grandparents who feature in this application,
reside in
Bloemfontein as aforementioned.
[8]
In his founding affidavit the First Applicant states that his father,
I D (“grandfather”) aged 72 and his mother
N D
(“grandmother”) aged 68 are willing for the children to
visit for short periods, but are not equipped and able
to look after
them for long periods. Grandmother suffers from arthritis and
having the children for an extended period is
putting a strain on her
ability to care for them. The situation has become strenuous to his
parents’ overall personal well-being
and affects their ability
to properly care for the children and themselves, he adds. Should
the grandparents fall ill
of Covid-19 they will not be able to look
after the children. The situation will worsen if the lockdown
continues.
He also expresses concerns that the grandparents
will not be able to supervise homework. The First Applicant is
a medical
doctor and he states that the childrens’ health and
well-being are being put at risk. He points out that he is equipped
to
deal with the childrens’ needs. Finally, he explains
that even though the Applicants heard of the Lockdown travel ban,
they were under the impression that they would be permitted to travel
to Bloemfontein to fetch the children and were not aware
of the
strict extent to which the travel ban would be enforced.
[9]
A memorandum by the Family Advocate of 7 April 2020, which supports
the moving of the children, points out that there is no
mention
whether the grandparents are employing the Covid-19 precautionary
measures, and states that the children require consistent
management
to ensure that they are abiding by the precautionary requirements of
Covid-19 relating to good hygiene, regular sanitising
and social
distancing. Further to the memorandum, on 8 April 2020 a video
conference interview was conducted by the Family Advocate
at the
request of the Respondent. A report by Laura Baartman who
conducted the interview also urges that the children be
returned to
Cape Town.
9.1
From the interview with the grandmother, Ms Baartman’s report
states that the grandmother has chronic ailments of arthritis
and
backpain necessitating a schedule 3 medical prescription. The
Lockdown has prevented grandmother’s daily house help from
coming in and grandmother has to attend to everything for the
household and children. She is currently physically exhausted and
her
ailments are deteriorating as a result. She is normally accustomed to
taking care of the children for shorter intervals and
cannot cope in
the current circumstances. This is going to impact negatively on her
care for the children. They are quite active
and she cannot manage
them. The grandfather provides limited support. The children are
going through different emotions and get
heartbroken for not being
with their parents.
9.2
An interview with the grandfather confirmed his wife’s
exhausted state as recorded in the report. He assists in playing
with
the children.
9.3
Interviews with the children revealed their desire to return home. Ms
Baartman could not confirm whether the children are at
risk in terms
of hygiene or that their levels of hygiene are optimal as required.
Discussion
Is
the movement of the children permitted in terms of the Amended
Direction 1 (c) (i)?
[10]
It was common cause that the grandparents with whom the children are
visiting temporarily, are caregivers as defined in Section
(1) (i) of
the Children’s Act No 38 of 2005. They factually care for
the children with the express consent of the parents.
In terms of the
Amended Direction movement of the children between their caregiver
grandparents and parents is prohibited except
where arrangements are
in place for them to move from one parent to another in terms of a
court order or parenting plan. There
is currently precisely such an
order, being a final order of divorce dated 8 July 2019
incorporating a consent paper and
parenting plan registered
with the Family Advocate, in terms of which arrangements are in place
for the movement of the children
from one parent to another. The
movement of the children thus falls within the ambit of the exception
as contained in the Amended
Direction and Mr Nacerodien for the
Respondent conceded as such. The Respondent’s opposition
on the basis that the
Amended Direction does not provide for movement
between parent and caregiver, cannot in the circumstances of this
case succeed.
[11]
There was some discussion as to whether movement from a caregiver
without a pre-existing court order, (which was ultimately
accepted as
not being the circumstance in the instant case), fell within the
ambit of the exception. Mr Smit, for the Applicants
submitted that
such movement of the children did fall within the ambit of the
exception and that absent a pre-existing order this
Court would be
permitted to grant an order for the movement of the children. It is,
I think apposite that I comment briefly on
these aspects.
11.1
It would seem to me that the omission in the exception to cater for
movement from a caregiver, appears to be at odds with the
preceding
reference to movement of children “between co holders….or
a caregiver”. An inclusion in the exception
of movement between
parent and caregiver would be an interpretation in line with Section
39 (2) of the Constitution, exhorting
as it does for legislation to
be interpreted to promote the spirit and purport of the Bill of
Rights , in this case Section 28
(2) of the Constitution and Bill.
That section states that a child’s best interests are of
paramount importance in every
matter concerning a child.
11.2
The Amended Direction does not specify that movement of children can
only take place in terms of a pre-existing court order
as alluded to
by the Respondent. My reading of the direction does not prevent a
court from making an order as required, presumably
in circumstances
of urgency, and for movement of children to take place in accordance
with arrangements put in place by such order.
[12]
Finally,
appropo
the Amended Direction it is to be noted that
proviso to the exception is catered for in paragraph 2.5 of the order
I granted. The
children will only be permitted to travel to the
Second Applicant on proof being provided that she has tested negative
for COVID-19.
The
Evidence
[13]
The unrefuted evidence makes clear that the task of caring for the
children by the grandparents is already proving not to be
sustainable
and this will only continue and be exacerbated over a further
prolonged period. The well-being and physical health
of the
children in these turbulent times are being placed at risk. The
situation is clearly an urgent and troubling one, and the
issues
raised by the Respondent pertaining to the failure to move the
children before the lockdown or the fact that the application
was
brought on 6 April, does not detract from the urgency. The best
interests of the children would undoubtedly be served
if permission
were to be granted for them to be fetched to travel from Bloemfontein
to Cape Town.
Costs
[14]
Whilst the notice of motion omitted a prayer for costs, the founding
affidavit clearly sought costs, in the event of the application
being
opposed. Mr Nacerodien’s submission that costs should not
follow the cause on account of the omission in the notice
of motion,
cannot prevail. Relevant to the question of costs also, is the
Respondent’s curious refusal to enter into a settlement
agreement notwithstanding the concession that the circumstances of
this case fell within the ambit of the exception contained in
the
Amended Direction which permitted the movement of the children, and
notwithstanding the unrefuted evidence. The question of
a settlement
was raised on more than one occasion during telephone conferences.
[15]
In view of all of the above I granted the order as set out in
Paragraph 6 above.
____________________
Y
S MEER
Judge
of the High Court