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[2010] ZAGPJHC 159
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B and Another v B (1592/2010) [2010] ZAGPJHC 159; 2012 (2) SA 394 (GSJ) (20 January 2010)
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
Case No.
1592/2010
Date:20/01/2010
In the matter between:
MR.
B
....................................................................................................
First
Applicant
B
......................................................................................................
Second
Applicant
and
Mrs.
B
…..................................................................................................
Respondent
JUDGMENT
MEYER, J
[1] This
application and counter-
application
came before me in the Motion Court yesterday by way of urgency.
[2] The first
applicant and the respondent were formerly married. There were two
minor children born of their marriage, a daughter
who is presently
seventeen years old and a son who is the second applicant in these
proceedings and presently sixteen years old.
[3] On 2 September
2009, the first applicant and the respondent were divorced from each
other by an order of this Court, which order
incorporated their
settlement agreement. In terms thereof the first applicant and the
respondent have joint parental rights and
responsibilities in respect
of the minor children, their primary residence vests with the
respondent, and the first applicant has
reasonable contact to them
subject to his contact to the second applicant being specified.
[4] In terms of
Part B of the Notice of Motion, the first and second applicants
intend to approach this Court by way of urgency
next week on Tuesday,
26 January 2010, for an order that primary residence of the second
applicant be awarded to the first applicant,
and for permitting the
first applicant to remove the second applicant from the Republic of
South Africa and to take him to reside
and study in Portugal. The
applicants and the respondent are Portuguese nationals. It is stated
in the founding affidavit that
was deposed to by the first applicant
and confirmed by the second applicant that the second applicant
‘wishes at this stage
to finish his schooling in Lisbon
Portugal, to do his tertiary education there and to advance his
passion for soccer which he feels
he can do more readily if he were
allowed to relocate to Portugal.’
[5] The urgent
relief that is presently sought in terms of Part A of the Notice of
Motion is for an advocate to be appointed to
represent the second
applicant in the application for the relief set out in Part B of the
Notice of Motion and for a referral of
the matter to the Family
Advocate to prepare a report as a matter of urgency.
[6
] The
reasons for the second applicant’s wish to be legally
independently represented are stated to be that he was advised
by
counsel that he should be so represented and because he wants to
ensure that there could be no suggestion that he is being influenced.
It is to be noted that the respondent avers that he has been
influenced by the first applicant and the first applicant’s
family.
[7
] The
respondent resists the relief claimed in terms of both parts of the
Notice of Motion. The relief claimed in Part A is essentially
resisted on the basis that no case for urgency has been made out;
that the second applicant is a minor and has no
locus
standi
;
and that the second applicant does not require his own legal
representative since his views, submissions and facts he wishes
to
advance can be done through the first applicant’s attorney and
counsel.
[8
] The
respondent, by way of counter-application, seeks that the second
applicant be ordered to forthwith return to Redhill School
pending
the final determination of this matter and for the first applicant to
be ordered to ensure that he does so.
[9
] I
consider the circumstance that this Court will be approached next
week to determine whether or not it is in the best interests
of the
second respondent if his primary residence is awarded to the first
applicant and if permission should be given for the second
applicant
to reside in Portugal as rendering the relief sought in Part A of the
Notice of Motion sufficiently urgent. Whether
or not urgency exists
in respect of the relief claimed in Part B of the Notice of Motion is
for the Court hearing that part of
the application to decide. The
fact is that the second applicant wishes that an independent counsel
represent him before the Court
next week.
[10
] S
28(1)(h) of the Constitution of the Republic of South Africa provides
that ‘[e]very child has the right to have a legal
practitioner
assigned to the child by the State, and at State expense, in civil
proceedings affecting the child, if substantial
injustice would
otherwise result.’ It has not been established that
‘substantial injustice’ would result if
the second
applicant is not represented by his own legal practitioner and the
appointment of a legal practitioner by the State
and at State expense
is not sought. The second applicant seeks the appointment of a legal
practitioner of his choice and his father,
the first applicant,
undertakes to pay for such independent representation for him - ‘win,
lose or draw’, as it was
put by Adv. Folkes-Jones SC who
appeared for the first applicant.
[11
] S
8(1) of the Children’s Act 38 of 2005 (‘the Act’)
provides that ‘[t]he rights which a child has in terms
of this
Act supplement the rights which a child has in terms of the Bill of
Rights.’ S. 14 of the Act provides that ‘[e]very
child
has the right to bring, and to be assisted in bringing a matter to a
Court, provided that matter falls within the jurisdiction
of that
Court.’
[12] S. 14 of the
Act supplements and is broader in scope than s 28(1)(h) of the
Constitution. S. 14 does not limit a child’s
right to legal
representation to cases in which ‘substantial injustice’
would otherwise occur. S. 14 also does not
limit the assistance to
which a child is entitled to that of a legal practitioner assigned by
the State.
[13] S 14 of the
Act does not prescribe the manner in which a child is entitled to
bring a matter to a Court nor the way in which
he or she is entitled
to be assisted. Nothing stated in this section, in my view, places
any constraint upon this Court to determine
the manner in which a
child is to bring a matter before it or the way in which the child
should be assisted. The paramount consideration
in determining such
issues remains the best interests of the child concerned. A request
by a child to be assisted in legal proceedings
by his or her own
legal representative will, however, in my view, only be refused in
exceptional circumstances since the child
concerned, particularly
where he or she is a party to the proceedings, will otherwise be
placed in a worse position than all other
natural or legal
personae
that
enjoy such right.
[14] I consider it
appropriate in all the circumstances for the second applicant to
remain a party to the proceedings. He is sixteen
years old. He has
been cited as the second applicant in the notice of motion and all
the affidavits filed so far. Also bearing
in mind the issues raised
on the papers, I do not consider it appropriate to disturb the manner
in which he, as second applicant,
elected to bring the matter to
Court. His best interests will also, in my view, not be served by
refusing him assistance by a
legal representative in the conduct of
Part B of the Notice of Motion. He is not financially at risk and
his wishes and desires
will be better presented and argued by a
representative who will ‘apply legal knowledge and expertise to
the child’s
perspective.’ See:
Soller
v G
2003
(5) SA 430
(W), para 27.
[15
] The
second applicant wishes to be represented by Adv. Renay Kathawaroo,
who is an Advocate of this Court and who is often appointed
as an
ad
hoc
Family
Advocate with extensive experience in matters involving children.
The second applicant states that he finds that he communicates
easily
with him.
[16
] The
respondent objects to the appointment of Adv. Kathawaroo on the
grounds that he has already formed a view in regard to certain
matters, which allegation is presumably based on a statement in the
founding affidavit that Adv. Kathawaroo confirmed that the
second
applicant ‘had told him that he wished to study in Portugal and
that he could not find any evidence that he had been
influenced.’;
that Adv. Kathawaroo has close ties with the office of the Family
Advocate; and that payment of his fees
by the first applicant is
improper and that it is the obligation of the State to pay for a
legal representative if this Court should
direct that one should be
appointed.
[17
] The
grounds of objection raised do not, in my view, disqualify Adv.
Kathawaroo from representing the second applicant. His view
on
whether or not evidence exists that the second applicant has been
influenced is inconsequential. A Court will determine the
issues on
the evidence presented and the application of the relevant legal
principles, having due regard to the submissions, and
not views, of
counsel representing the parties. The fact that Adv. Kathawaroo acts
as
ad
hoc
Family Advocate from time to time and the fact that he will receive
his fees from the first applicant do not justify any inference
that
he will not act with competence and integrity and comply with his
duty towards his client, the second applicant, and with
his duty
towards the Court. The Family Advocate assigned to this matter is
obliged to render a professional and neutral function.
The State is
not obliged to pay Adv. Kathwaroo since he is not assigned to the
second applicant by the State and a case that substantial
injustice
would result if a legal practitioner is not assigned to the second
applicant has not been made out.
[18
] The
second applicant attended Redhill School, Sandton all his life. The
respondent’s undisputed affidavit evidence is that
Redhill
School is ‘one of the top independent South African schools,
where he has been happy, well settled and has received
an excellent
education.’ Prior to January 2010 the second applicant did not
give the respondent any reason to believe that
he did not wish to
continue his education at Redhill School. He now refuses to go back
to Redhill School. I have no hesitation
in finding, as was in my
view correctly submitted by Adv. Woodward SC on behalf of the
respondent, that it is in the best interests
of the second applicant
that he should immediately go back to school pending the final
determination of this matter.
[19
] In
the result the following order is made:
The applicants’
and the respondent’s non-compliance with the Rules of this
Court are condoned and
Part
A of the application and the counter-application are determined as
matters of urgency.
The second
applicant is entitled to legal representation
in
this application for the relief set out in Part B of the Notice of
Motion and to have Adv. Kathawaroo appointed to so assist
him.
The matter is
referred to the F
amily
Advocate to prepare a report as a matter of urgency in regard to
Part B of the Notice of Motion herein.
The second applicant is ordered to
forthwith return to Redhill School pending the final determination
of this matter.
The first applicant is ordered to
ensure that the second applicant return to Redhill School forthwith.
The applicants are
given leave to amplify their founding affidavits pertaining to the
relief set out in
Part
B of the Notice of Motion.
The respondent is
given leave to amplify her answering affidavit pertaining to the
relief set out in Part B of the Notice of Motion.
Part B of the
Not
ice
of Motion is postponed to Tuesday, 26 January 2010 at 10h00 or as
soon thereafter as the matter may be heard.
The costs of Part
A of the Notice of Motion and of the counter-application are
reserved for determination by the Court hearing
Part B of the Notice
of Motion.
P.A. MEYER
JUDGE OF THE HIGH COURT
20 January 2010