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[2016] ZASCA 88
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MEC for Social Development, Western Cape and Others v Justice Alliance of South Africa and Another (1054/2015) [2016] ZASCA 88 (1 June 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1054/2015
In
the matter between:
MEC
FOR SOCIAL DEVELOPMENT,
FIRST APPELLANT
WESTERN
CAPE
THE
DEPARTMENT OF SOCIAL DEVELOPMENT,
SECOND APPELLANT
WESTERN
CAPE
MEC
FOR EDUCATION, WESTERN CAPE
THIRD APPELLANT
THE
DEPARTMENT OF EDUCATION, WESTERN CAPE
FOURTH
APPELLANT
and
THE
JUSTICE ALLIANCE OF SOUTH AFRICA
FIRST RESPONDENT
SCHOOL
GOVERNING BODY OF OTTERY
SECOND
RESPONDENT
YOUTH
CARE AND EDUCATION CENTRE
Neutral
citation:
MEC:
Social Development, Western Cape v The Justice Alliance of South
Africa
[2016]
ZASCA 88
(1 June 2016)
Coram:
Mpati
P, Saldulker, Mbha JJA, Fourie and Victor AJJA
Heard:
17
May 2016
Delivered:
1
June 2016
Summary:
Establishment
of child and youth care centres in terms of s 195 of the Children’s
Act 38 of 2005 – involves decisions
which are polycentric and
policy-laden in nature – intervening therewith undermines the
doctrine of separation of powers
– the requirements for the
establishment of child and youth care centres not met.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Salie-Hlophe J sitting as
court of first instance), judgment reported
sub
nom Justice Alliance of South Africa & another v Minister of
Social Development, Western Cape & others
[2015] 4 All SA 467
(WCC):
1
The
appeal is upheld and the order of the Western Cape Division of the
High Court, Cape Town, is amended to the extent that orders
(iii),
(iv), (v) and (vi) made on 31 August 2015, are set aside.
2
No
order is made in respect of the costs of the appeal.
3
The
cross-appeal is dismissed with costs, which costs, including the
costs of two counsel, are to be borne by the first respondent.
JUDGMENT
Fourie
AJA (Mpati P, Saldulker, Mbha JJA and Victor AJA concurring):
[1]
This is an appeal against a judgment of the Western Cape Division of
the High Court, Cape Town (the WCC), declaring that four
educational
centres in the Western Cape Province were to be regarded as child and
youth care centres (CYCCs) in terms of the provisions
of the
Children’s Act 38 of 2005 (the Children’s Act).
[2]
The first appellant is the Member of the Executive Council for Social
Development, Western Cape (the MEC Social Development),
while the
second appellant is the Department of Social Development, Western
Cape (the WCDSD). The third appellant is the Member
of the Executive
Council for Education, Western Cape, while the fourth appellant is
the Department of Education, Western Cape (the
WCED).
[3]
The first respondent is the Justice Alliance of South Africa, a
non-profit voluntary association constituted as a juristic person
with standing by virtue of the provisions of s 38
(d)
and
(e)
of
the Constitution. The second respondent is the School Governing Body
of Ottery Youth Care and Education Centre.
[4]
On 17 December 2013, the respondents launched an application in the
WCC in relation to four educational centres in the Western
Cape,
which they asserted must be regarded as CYCCs for purposes of the
Children’s Act, being Die Bult Youth Centre (Die
Bult), Eureka
Youth Centre (Eureka), Wellington Youth Centre (Wellington) and
Ottery Youth Centre (Ottery), collectively referred
to as ‘the
centres’. The respondents sought wide-ranging relief. In fact,
their notice of motion contained twenty-two
prayers for relief
including declaratory orders and a series of mandatory interdicts.
[5]
The appellants opposed the application and, after hearing argument,
the WCC granted six of the twenty-two substantive prayers
for relief.
The appellants have appealed four of the substantive orders, while
the respondents have lodged a cross-appeal against
the order relating
to costs (the WCC made no order as to costs). The appeals are brought
with the leave of the WCC.
[6]
The relief sought by the respondents was premised, in the main, on s
196(1) of the Children’s Act, the relevant part of
which reads
as follows:
‘
(1)
As from the date on which section 195 takes effect [1 April 2010], -
.
. .
(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
[74 of 1983] 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 s 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
provides 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 Children’s 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(2) obligates the WCED to provide education to the
children in the facilities mentioned in s 196(1)
(d)
and
(e)
.
Section 196(3) provides that a school of industries and a reform
school referred to in s 196(1)
(d)
and
(e)
,
respectively, which are the responsibility of a provincial department
of education as at 1 April 2010, becomes the responsibility
of a
provincial department of social development within two years of that
date.
[9]
Section 195 of the Children’s Act provides for the
establishment of CYCCs by the respective MEC’s for Social
Development
from money appropriated by the relevant provincial
legislatures for that purpose. The respondents contended that the
centres which
had been established as schools of industries (Ottery,
Die Bult and Wellington) and as a reform school (Eureka), are
respectively
to be regarded as CYCCs contemplated by s 196(1)
(d)
and
(e)
of
the Children’s Act.
[10]
This contention found favour with the WCC which made orders to the
following effect on 31 August 2015:
(i)
The national Minister of Social Development (the fifth respondent in
the WCC,
who is not a party in this appeal) was directed to produce
and present to the registrar of the WCC within 6 months of the date
of the order (ie by 29 February 2016), the national strategy referred
to in s 192(1) of the Children’s Act.
(ii)
The MEC Social Development was directed to produce and present to the
registrar of
the WCC the provincial strategy referred to in s192(2)
of the Children’s Act, within 4 months from the date that
the
national Minister of Social Development produced the national
strategy.
(iii)
It was declared that, in accordance with s 196(1)
(d)
of the
Children’s Act, from 1 April 2010, Ottery, Die Bult and
Wellington were respectively regarded as having been established
in
terms of s 195 of the Children’s Act as a CYCC providing a
residential care programme referred to in s 191(2)
(i)
of the
Children’s Act.
(iv)
It was declared that, in accordance with s 196(1)
(e)
of the
Children’s Act, from 1 April 2010, Eureka was regarded as
having been established in terms of s 195 of the Children’s
Act
as a CYCC providing a residential care programme referred to in s
191(2)
(j)
of the Children’s Act.
(v)
It was declared that from 1 April 2012, Die Bult, Eureka, Ottery and
Wellington became
the responsibility of the WCDSD, which
responsibility includes, but is not limited to:
(a)
being responsible for the possession, use and upkeep of the physical
infrastructure of each CYCC; and
(b)
ensuring that each CYCC is properly resourced, co-ordinated and
managed
in compliance with its
obligations in terms of the Children’s Act.
(vi)
The WCDSD was directed to forthwith consider afresh the placements of
those children who
had been placed in terms of ss 156(1)
(h)
and
158 of the Children’s Act at the secure care CYCCs at
Outeniqua, Vredelus, Horizon and Clanwilliam, and who are still
so
placed.
(vii)
No order as to costs was made.
[11]
The appellants have appealed orders (iii), (iv), (v) and (vi). The
two remaining substantive orders (i) and (ii) were granted
by consent
and are not impugned on appeal. It is necessary to consider briefly
the import of orders (i) and (ii).
[12]
As envisaged in s 191(2)
(i)
and
(j)
of the Children’s Act, provision is made for the establishment
of CYCCs for the reception, development and secure care of
children
who broadly fall in two categories, ie children whose parents or
care-givers are unable to control them due to behavioural
and
emotional difficulties, and those who are in conflict with the law.
To this end s 192(1) of the Children’s Act requires
the
national Minister of Social Development to prepare a comprehensive
national strategy after consultation with interested persons
and the
national Ministers of Education, Health, Home Affairs and Justice and
Constitutional Development. This national strategy
has to be aimed at
ensuring an appropriate spread of CYCCs throughout the Republic
providing the required range of residential
care programmes in the
various regions, giving due consideration to children with
disabilities or chronic illness.
[13]
Section 192(2) requires the MEC’s for Social Development to
provide, within the national strategy, for a provincial strategy
aimed at the establishment of an appropriate spread in the respective
provinces of properly resourced, co-ordinated and managed
CYCCs
providing the required range of residential care programmes. The
respondents have recognised the importance of s 192, by
stating that,
‘absent a strategy, National and Provincial, the Provincial
Minister arguably cannot roll out any new child
and youth care
centres. He certainly cannot close any . . .; a significant reason
for the nationwide confusion regarding a proper
interpretation of the
Children’s Act, can be attributed to the failure on the part of
the Minister for Social Development
(National) to produce a national
strategy . . . , Behind the confusion in the Western Cape Province,
is also the failure on the
part of the Provincial Minister for Social
Development to produce a provincial strategy . . ., [w]ithout the
national and provincial
strategies it is no wonder that there is such
chaos in respect of the implementation of the transfer of these
[c]entres’.
[14]
The national strategy had, despite assurances by the national
Minister of Social Development, not yet been finalised at the
time of
the hearing of the application by the WCC. Absent a national
strategy, the MEC Social Development had also not been able
to
prepare a provincial strategy for the Western Cape. The time-limit
laid down by the WCC in order (i) for the production and
delivery of
the national strategy, had expired, but we were informed by counsel
that it had been made available on 1 April 2016.
In terms of order
(ii) of the WCC the provincial strategy has to be delivered by 31
July 2016.
[15]
Apart from the national and provincial strategies, s 194 also
requires the national Minister to determine national norms and
standards for CYCCs by regulation, after consultation with interested
persons and the national Ministers of Education, Health,
Home Affairs
and Justice and Constitutional Development. Subsection 194(2)
(a)
-
(n)
sets
out a detailed range of aspects concerning the development and care
of children in CYCCs, to which the contemplated norms and
standards
must relate. These norms and standards had been published on 1 April
2010.
[16]
When regard is had to the ambit and extent of orders (iii) –
(v), one is struck by the impact that these orders will
have on the
decision-making powers of the executive in regard to the
establishment and conduct of CYCCs in the Western Cape. As
recorded
earlier, the Children’s Act vests wide discretionary powers in
the national Minister of Social Development, the
MEC Social
Development and the WCDSD. These include the compilation of the
national and provincial strategies aimed at ensuring
an appropriate
spread of CYCCs throughout the Republic and the Western Cape
Province, and ensuring that they are properly resourced,
co-ordinated
and managed, whilst providing the required range of residential care
programmes. To this end s 192(1) provides for
an inter-ministerial
consultative process involving other interested parties prior to
compiling the national strategy, while s
194(1) provides for a
similar process prior to the determination of the national norms and
standards for CYCCs. As submitted on
behalf of the appellants, the
nature of these consultative processes highlights the polycentric and
policy-laden character of the
decision-making process concerning the
distribution of CYCCs and the programmes to be provided by them.
[17]
The effect of orders (iii) – (v) is that the centres are to be
regarded as CYCCs, with the result that, by operation
of s 195 of the
Children’s Act, the WCDSD was bound to establish and operate
the centres from money appropriated by the Western
Cape Legislature.
This means that the WCDSD must provide the necessary personnel and
funding to operate the centres as CYCCs.
[18]
What the WCC had not taken into account when granting orders (iii) –
(v), is that, with effect from 31 December 2000,
ie more than nine
years prior to the commencement of the Children’s Act on 1
April 2010, these centres had been formally
closed down. The
functions of the centres, other than Ottery, had thereafter been
progressively wound down, so as to enable the
WCED to repurpose them
for use as schools for children with special needs. In fact, by the
time the application was heard by the
WCC in June 2015, Die Bult had
been converted for use as a secondary school for children with
special needs; Eureka had de facto
ceased to function as a CYCC and
there were only eight children in need of care and protection that
had been placed at Wellington.
Ottery had by then been granted
conditional registration as a CYCC under s 199 of the Children’s
Act. All of the centres
operated under the auspices of the WCED and
the facilities at the centres were owned by the WCED.
[19]
In view of the above, orders (iii) – (v) clearly trench on the
decision-making powers of the executive. The decisions
as to the
establishment, appropriate spread and conduct of CYCCs in terms of
the Children’s Act, are ones (to borrow a phrase
from Moseneke
DCJ in
International
Trade Administration Commission v Scaw South Africa (Pty) Ltd
[2010] ZACC 6
;
2012 (4) SA 618
(CC) para 44) that reside in the
heartland of the exercise of national and provincial executive
authority. The separation of powers
doctrine requires a court to
refrain from intervening in decisions of this nature, particularly as
they are polycentric and policy-laden
in nature. The appellants
correctly submitted that the granting of orders (iii) – (v) was
the equivalent of the implementation
of a strategy of the nature
contemplated by s 192 of the Children’s Act, in circumstances
where such implementation would
occur without any of the consultative
processes required by the legislature. In addition, these orders
clearly impinge on the function
of the executive by effectively
determining where and how public funds and resources should be
deployed.
[20]
In
Minister of Home Affairs & others v Scalabrini Centre Cape
Town & others
[2013] ZASCA 134
;
2013 (6) SA 421
(SCA) para
57, Nugent JA said the following with regard to the establishment of
reception offices under the
Refugees Act 130 of 1998
:
‘
The
question whether a Refugee Reception Office is necessary for
achieving the purpose of the Act is quintessentially one of policy.
Where, and how many, offices should be established will necessarily
be determined by matters like administrative effectiveness
and
efficiency, budgetary constraints, availability of human and other
resources, policies of the department, the broader political
framework within which it must function, and the like. I do not think
courts, not in possession of all that information, and not
accountable to the electorate, are properly equipped or permitted to
make those decisions.’
A
similar warning was sounded by Sachs J in
Du Plessis & others
v De Klerk & another
[1996] ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5) BCLR 658
para 180:
‘
The
judicial function simply does not lend itself to the kinds of factual
enquiries, cost-benefit analyses, political compromises,
investigations of administrative/enforcement capacities,
implementation strategies and budgetary priority decisions, which
appropriate
decision-making on social, economic, and political
questions require.’
These
observations apply with equal force in the instant matter.
[21]
What the WCC further failed to appreciate is that the transfer of the
centres from the WCED to the WCDSD, would involve the
transfer of the
employees from their current employment with the WCED to the WCDSD.
This process would impact on the terms and
conditions of their
current employment and thus require a labour relations process to be
undertaken, including an organisational
design process to determine
equivalent job descriptions and gradings, and negotiation with the
relevant labour unions and bargaining
councils. Obviously no process
of this nature had taken place and orders (iii) – (v) ought
therefore not to have been made.
[22]
It appears that the provisions of s 14(1) and (3) of the Public
Service Act 103 of 1994, were also overlooked by the WCC. The
effect
of these subsections is that a public sector employee may be
transferred from one department to another, when the public
interest
so requires, provided that the approval of the persons who, in
respect of each of those departments, have the power to
transfer,
must first be obtained, and after meaningful and proper consultation
with the employee concerned has taken place. (See
Public
Servants Association of South Africa v Minister of Department of Home
Affairs & others
[2012] ZALAC 35
;
[2013] 3 BLLR 237
(LAC) paras 70 and 83-84.) In
effect orders (iii) – (v) granted by the WCC amounted to a
transfer of employees of the WCED
to the WCDSD, without compliance
with s 14 of the Public Service Act.
[23]
There was also a statutory impediment preventing the WCC from
lawfully granting orders (iii) – (v). I have recorded that
the
centres had been formally closed down at the time of the coming into
operation of the Children’s Act. This resulted from
various
statutory enactments which had repealed the Children’s
Protection Act 25 of 1913 (the CPA) and the Prisons
and
Reformatories Act 13 of 1911 (the Prisons Act), culminating, insofar
as the Western Cape Province is concerned, in the enactment
of the
Western Cape Provincial School Education Act 12 of 1987 (the WC
Schools Act). In terms of s 18 of the WC Schools Act, the
centres
were closed by provincial proclamation dated 16 September 2000, with
effect from 31 December 2000. This followed on the
decision of the
WCED to close the centres and to re-establish them under the WC
Schools Act as schools for learners with special
educational needs.
Therefore, as from 31 December 2000, the centres were, in law, public
schools for learners with special educational
needs in terms of s 12
of the WC Schools Act.
[24]
The respondents recognised this statutory impediment to the relief
sought by them. Therefore, they sought orders in terms of
paras 12
and 13 of their notice of motion, declaring the decision to close
and/or the intended closure of the centres to be unlawful
and
unconstitutional. However, the WCC did not grant any relief to the
respondents under paras 12 and 13 of the notice of motion.
[25]
Until such time as the decisions of the WCED, as embodied in the
respective proclamations, to close and re-establish the centres
as
public schools are set aside, they exist in fact and have legal
consequences that cannot be overlooked. See
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
[2004] ZASCA 48
;
2004 (6) SA 222
(SCA) para 26 and
MEC
for Health, Eastern Cape & another v Kirland Investments (Pty)
Ltd
[2014] ZACC 6
;
2014 (3) SA 481
(CC) para 103. Absent orders declaring
the formal closure of the centres to have been unlawful and setting
aside the closure and
re-establishment of the centres as schools for
learners with special educational needs, there was no basis for the
WCC to grant
orders (iii) – (v).
[26]
As indicated earlier, the respondents premised their application on
the deeming provisions of ss 196(1)
(d)
and
(e)
of the Children’s Act. In terms of these sub-sections
government industrial schools and reformatories had, with effect from
1 April 2010, to be regarded as CYCCs established in terms of s 195
of the Children’s Act, if two requirements were met.
In the
case of a government industrial school it had to have been
established in terms of s 33 of the CPA and maintained as a school
of
industries in terms of the Child Care Act. A reformatory, on the
other hand, had to have been established in terms of s 52 of
the
Prisons Act and maintained as a reform school in terms of the Child
Care Act.
[27]
The difficulty facing the respondents was that, as at 1 April 2010,
the centres did not fall within the ambit of ss 196(1)
(d)
or
(e)
of the Children’s Act. It is common cause that the centres had
not been established in terms of either the CPA or the Prisons
Act.
In addition, as recorded above, the centres had as a matter of fact
and of law, as at 1 April 2010, been lawfully established
as schools
for learners with special educational needs in terms of s 18 of the
WC Schools Act. They were accordingly not, as at
1 April 2010,
maintained as schools of industries or reform schools respectively.
Therefore, there was no basis in law upon which
the WCC could have
held that the centres fell within the ambit of ss 196(1)
(d)
or
(e)
of the Children’s Act and it should accordingly not have
granted orders (iii) – (v).
[28]
Counsel for the respondents, however, submitted that, notwithstanding
the formal closing down of the centres by the WCED and
their
re-purposing as schools for learners with special educational needs,
they were, as at 1 April 2010, being maintained as schools
of
industries and a reformatory, respectively, in terms of the Child
Care Act. This submission did not take account of the undisputed
evidence recorded in para 18 above, that the centres had been engaged
in a process of closure and winding down of operations. There
was
accordingly no basis for a finding that, as at 1 April 2010, the
centres had been maintained as schools of industries or as
a reform
school, respectively.
[29]
I should add that, even if the centres had been maintained as such,
they would not have fallen within the ambit of ss 196(1)
(d)
or
(e)
of the Children’s Act, as they must, as a matter of fact and
law, as at 1 April 2010, have been both established in terms
of the
CPA or the Prisons Act
and
maintained as schools of industries and a reform school,
respectively. (My emphasis.) In an attempt to overcome this hurdle,
counsel
for the respondents submitted that the word ‘
and
’
in ss 196(1)
(d)
and
(e)
of
the Children’s Act ought to be read disjunctively rather than
conjunctively. Therefore ‘
and
’
should be read as ‘
or
’
for the purposes of those subsections. This submission found favour
with the WCC who applied what it termed a ‘purposive
interpretation’ of ss 196(1)
(d)
and
(e)
,
by finding that the section merely required erstwhile schools of
industries and reform schools to have been established in terms
of
the CPA or the Prisons Act
or
maintained as such in terms of the Child Care Act, in order to be
deemed to be CYCCs as contemplated by s 195 of the Children’s
Act. (My emphasis.)
[30]
The WCC reasoned that, to give ss 196(1)
(d)
and
(e)
its ordinary meaning, would lead to an absurdity, ie an arbitrary
distinction being drawn between schools of industries and reform
schools established in terms of the CPA or the Prisons Act and those
established in terms of other legislation. However, in applying
this
construction of ss 196(1)
(d)
and
(e)
the WCC ignored the legislative scheme by which, in the Western Cape
Province, all schools of industries and reform schools established
and managed by the WCED as at 1 December 2000, had as a matter of law
been established as public schools for learners with special
educational needs.
[31]
In
Ngcobo
& others v Salimba CC; Ngcobo & others v Van Rensburg
[1999] ZASCA 22
;
1999 (2) SA 1057
(SCA) para 11, this court held that
there must be compelling reasons why the words used by the
legislature should be replaced;
in this case why ‘and’
should be read to mean ‘or’. Olivier JA, writing for the
court, stressed that the
words should be given their ordinary meaning
unless the context shows or furnishes very strong grounds for
presuming that the legislature
really intended that the word not used
is the correct one. In
Preddy
& another v Health Professions Council of South Africa
[2008] ZASCA 25
;
2008 (4) SA 434
(SCA) paras 9-11 it was emphasised
that, as a starting point in the interpretation of a statute, the
words used ought to be given
their ordinary grammatical meaning
having due regard to their context. Therefore, a construction which
requires the words used
by the legislature to be replaced, should be
regarded as a violent expedient which ought not to be adopted, except
in the last
resort.
[32]
For the reasons enunciated above, there are, in my view, no grounds,
let alone any strong grounds, why the word ‘and’
used by
the legislature in ss 196(1)
(d)
and
(e)
should
be replaced with ‘or’. On the contrary, there appears to
me to be no inconsistency or absurdity which arises
from the ordinary
meaning of ‘and’ as used in the section. Therefore, upon
a proper construction of ss 196(1)
(d)
and
(e)
,
there was no basis for the granting of orders (iii) – (v) by
the WCC.
[33]
This brings me to order (vi), in terms of which the WCDSD was
directed to consider afresh the placement of those children who
had
been placed at the secure care CYCCs at Outeniqua, Vredelus, Horizon
and Clanwilliam. The order was made on the strength of
the
allegations of the respondents that, at these institutions, children
with behavioural problems were housed together with sentenced
or
awaiting trial children, which constituted a serious infringement of
the constitutional rights of the children with behavioural
problems.
When order (vi) of the WCC is read in the context of the judgment as
a whole, it is apparent that the WCC was of the
view that the housing
of children who were subject to secure care programmes for
involvement in criminal activities in the same
facilities that house
children that are in secure care programmes for behavioural reasons,
is unconstitutional and constitutes
an infringement of the basic
human rights of the latter category of children. Hence the order that
the WCDSD was to consider afresh
the placement of these children.
[34]
It will be immediately apparent that order (vi) seeks to prescribe to
the WCDSD how it should fulfil its functions contemplated
by the
Children’s Act. In terms of s 158 of the Children’s Act,
the placement of children in CYCCs is the function
of the Provincial
Head of Social Development. In so doing a range of considerations
enumerated in s 158(3) are to be taken into
account. The Provincial
Head of Social Development is required to select a centre offering
the programme ordered by the court and
which is located as close as
possible to the child’s family or community. As I see it, the
WCC did, by making order (vi),
usurp the functions that the
Children’s Act has entrusted to the WCDSD. As in the case of
orders (iii) – (v), order
(vi) violates the doctrine of
separation of powers and ought not to have been made.
[35]
Further, and in any event, it appears that order (vi) was made in
circumstances where there was no factual basis for it. In
responding
to the allegations of exposure of children placed in secure care
programmes for behavioural reasons, to children placed
in secure care
who are sentenced offenders or awaiting trial or sentence on criminal
charges, the appellants made the following
factual averments in their
answering affidavit:
‘
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.
The
applicants were further advised that children in need of care and
protection, without behavioural problems are not accommodated
in the
same child and youth care centres as children who are awaiting trial
or have been sentenced.
.
. .
It
is difficult to appreciate why the applicants are proceeding in this
matter when they have clearly been informed that the facts
upon which
they based their application are not correct.’
[36]
These averments were not disputed in reply. In addition, the
appellants invited representatives of the respondents to accompany
them on an inspection in loco to satisfy themselves that there was no
truth in the allegations contained in the founding papers.
This
invitation was not accepted.
[37]
The respondents sought final relief on motion and, in view of this
dispute of fact, the matter had to be adjudicated upon the
version of
the appellants, particularly as there was no basis to say that the
appellants raised fictitious disputes of fact or
that their version
was so far-fetched, or clearly untenable, that it could be rejected
merely on the papers. See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984]
ZASCA 51
;
1984 (3) SA 623
(A) at 634-5 and
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) paras
55-56.
[38]
Furthermore, as pointed out by the appellants, there is no provision
in the Children’s Act which requires that children
in the
different categories should be housed separately in the sense that
they need to be placed in separate facilities. All that
the
Children’s Act contemplates is that children in secure care be
kept separate from children not in secure care. In any
event, it
appears that in the Western Cape there is a more fundamental
separation than that required in terms of the Children’s
Act,
in that the different categories of children in secure care are
housed separately in the facilities in which secure care is
provided,
while children not in secure care are placed in separate facilities.
[39]
For all the above reasons, the appeal should succeed and orders
(iii), (iv), (v) and (vi) be set aside. The appellants have
not
sought costs on appeal and accordingly no order should be made in
this regard.
[40]
In view of the appellants’ success on appeal resulting in the
setting aside of orders (iii) – (vi), the respondents’
cross-appeal against the costs order made by the WCC, has to fail.
With regard to the costs of the cross-appeal, the principles
set out
in
Biowatch
Trust v Registrar, Genetic Resources & others
[2009] ZACC 14
;
2009 (6) SA 232
(CC) do not apply, in that it does
not relate to the assertion of a constitutional right. The costs of
the cross-appeal should
accordingly follow the result. In my view the
first respondent should be declared liable for these costs as it was
the driving
force behind the application and the eventual
cross-appeal. This is borne out by the fact that its Executive
Director deposed to
the founding and replying affidavits, while the
second respondent merely filed brief confirmatory affidavits.
[41]
In the result the following orders are made:
1
The appeal is upheld and the order of the Western Cape Division of
the High Court, Cape Town, is amended to the extent that orders
(iii), (iv), (v) and (vi) made on 31 August 2015, are set aside.
2
No order is made in respect of the costs of the appeal.
3
The cross-appeal is dismissed with costs, which costs, including the
costs of two counsel, are to be borne by the first respondent.
_____________________
P B
Fourie
Acting
Judge of Appeal
APPEARANCES:
Counsel
for Appellants:
A Katz SC (with
him M Adhikari)
Instructed
by:
The
State Attorney, Cape Town
The
State Attorney, Bloemfontein
Counsel
for Respondents:
I Jamie SC (with him B Studti & A
Nacerodien)
Instructed
by:
C &
A Friedlander Attorneys, Cape Town
Symington
& De Kok, Bloemfontein