SS (A Minor Child) v Presiding Officer of the Children’s Court, District Krugersdorp and Others (A3056/11) [2011] ZAGPJHC 139; [2012] 1 All SA 231 (GSJ) (25 October 2011)

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[2011] ZAGPJHC 139
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SS (A Minor Child) v Presiding Officer of the Children’s Court, District Krugersdorp and Others (A3056/11) [2011] ZAGPJHC 139; [2012] 1 All SA 231 (GSJ) (25 October 2011)

REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: A3056/11
DATE:25/10/2011
In the matter between:
S
S (A MINOR
CHILD)
........................................................................
Appellant
And
THE PRESIDING OFFICER OF THE CHILDREN’S
COURT,
DISTRICT KRUGERSDORP
....................................
First
Respondent
MINISTER
OF SOCIAL DEVELOPMENT
.........................
Second
Respondent
MEC FOR HEALTH AND SOCIAL DEVELOPMENT,
GAUTENG
....................................................................................
Third
Respondent
In re
CHILDREN’S
INSTITUTE
….......................................
Proposed
Amicus
Curiae
N
C M (A MINOR
CHILD)
.......................................................
Proposed
Appellant
J U D G M E N T
Summary
Appeal – filing of heads
timeously necessary for courts to properly prepare for the hearing -
applicant for admission as amicus
curiae must comply with Rule 16A -
such compliance to be timeous to avoid application for condonation -
failure to apply for condonation
- amicus status in High Court allows
a party to make submissions only - no right to lead evidence -
procedure different to that
of Constitutional Court which allows for
evidence subject to certain constraints - joinder of parties with
direct and substantial
interest in matter pursuant to court’s
inherent power to do so.
[1] An appeal by the appellant
has been enrolled for hearing today. The appeal is against a judgment
and order of the presiding
officer of the children’s court held
in the magisterial district of Krugersdorp. The appeal is
specifically against the finding
of the learned magistrate that a
minor child, one SS, is not in need of care and protection as
envisaged in S 150(1)(a) of the
Children’s Act 38 of 2005 (the
Children’s Act) and a consequent refusal to place the child in
foster care. The judgment
was delivered pursuant to an enquiry in
terms of s 155(1) of the Children’s Act.
[2] Three applications have to be
dealt with prior to dealing with the merits of the appeal. The fist
is an application by the second
and third respondents, being the
Minister of Social Development and the Member of the Executive
Council for Health and Social Development,
Gauteng, respectively, to
be joined in the matter either as
amici
curiae
or as
respondents. The second application is by the Children’s
Institute, the proposed
amicus
curiae
, in terms of
which it seeks to be admitted as
amicus
curiae
in the appeal.
The third application is brought by the proposed appellant by way of
urgency to hear another matter together with
the appeal already
before this court.
Joinder of Second and Third Respondents
[3] After the presiding officer
delivered judgment, the appellant filed a notice of appeal. The
notice introduces the second and
third respondents and it was served
on these two respondents, who were not parties before the presiding
officer. There is no indication
as to how it came about that these
two respondents were joined in the proceedings and there appears
nothing from the record why
these two respondents were cited in the
appeal. In supplementary heads of argument, which the appellant filed
on 19 October 2011
it is said that “
This
appeal is unusual in that the Second Respondent was not a party in
the matter in the Children’s Court, and was joined
as a
respondent by the appellant, only at the Appeal stage
.”
No application to join parties served before any court.
[4] The next step was that the
appellant filed what is referred to as “
index
of pleadings filed after the lodging of record
”.
Amongst the documents is a notice to oppose by the second and third
respondents as well as a withdrawal of that notice.
In the notice of
withdrawal of the notice of intention to oppose the second and third
respondents state that they will, at the
hearing of the appeal, ask
leave of the court to make legal and/or factual submissions “
more
or less as the friend of the court or as it may be convenient to the
court or as the respondents in order to assist the court
to come to a
decision
”. The
second and third respondents further state in the notice of
withdrawal that they “
will
ask leave of the court to file an affidavit on the legal and or
factual issues relevant to the appeal
”.
The second respondent then filed an affidavit by the Director General
of the Department of Social Development on behalf
of the second
respondent. The affidavit sets out the facts of the matter as it
occurred before the presiding officer and proceeds
to set out
argument regarding the matters on appeal before this court.
[5] A joinder of the second and
third respondents is required by Uniform Rule 10A if the
constitutional validity of a law is challenged.
Rule 10A reads:
“
If
in any proceedings before the court, the constitutional validity of a
law is challenged, the party challenging the validity of
the law
shall join the provincial or national executive authorities
responsible for the administration of the law in the proceedings.”
However, in this matter there is no challenge to the validity of the
legislation as far as the appellant and the two respondents
are
concerned. It concerns the interpretation of legislation and the
joinder cannot be pursuant to rule 10A.
[6] The joinder of a party is
necessary when the interests of such a party may be affected by the
court’s order. The test
is whether or not a party has a “direct
or substantial interest” in the subject matter of the action or
has a legal
interest in the subject matter of the litigation which
may be affected prejudicially by the judgment of the court. See
Amalgamated Engineering
Union v Minister of Labour
1949
(3) SA 637
(A) at 657. A court may then
mero
motu
join such a
party.
[7] The second and third
respondents did not make application pursuant to Uniform Rule 16A to
be admitted as
amicus
curiae.
I will assume
that the filing of the affidavit by the second respondent does so
constitute an application to be admitted as
amicus
curiae.
However, there
is no provision in rule 16A for the reception of an affidavit filed
on behalf of such a party. The affidavit filed
by the second and
third respondents summarises the facts of the matter before the
presiding officer and contains argument regarding
the interpretation
of certain sections of the Children’s Act which are
substantially similar arguments to those of the appellant,
save that
an argument regarding the interpretation of s 150(1)(a) of the
Children’s Act differs from the argument submitted
by the
appellant. The second and third respondents nevertheless support the
relief that the appellant seeks.
[8] However, I am of the view
that the second and third respondents have a direct and substantial
interest in the order which the
court may give and their joinder is
necessary. See
Rosebank
Mall (Pty) Ltd v Cradock Heights (Pty) Ltd
2004
(2) SA 353
at 366B-D. Without considering the manner in which such a
joinder may be effected, the second and third respondents are
pursuant
to their application contained in the affidavit entitled to
be joined in these proceedings. A party so joined must of necessity

be allowed to file an affidavit to place facts relevant to the issues
before a court and have the opportunity to be heard. See:
Pretorius
v Slabbert
2000 (4) SA
935
(SCA) at 939E.
Admission of Proposed
Amicus Curiae
[9] Also contained amongst the
documents filed after the lodging of the record is a notice in terms
of rule 16A(1) given by the
appellant. In it, it is stated that the
appellant is raising a constitutional issue in that:
“
1. This application
concerns primarily the duty of a presiding officer in a Children’s’
Court.
1.1 To
properly take into account the constitutional obligation to apply
sections 39(2) and 28(2) of the Constitution when interpreting
s
150(1)(a) of the Children’s Act 38 of 2005 by reading “
and
without visible means of support” in s 150(1)(a) as “
or
without visible means of support”.
1.2 To
properly take into account the constitutional obligation to apply s
39(2), and s 38(2) when determining the meaning of “visible

means of support” in s 150(1)(a) of the Children’s Act 38
of 2005”.
On the assumption that the issues
on appeal are indeed constitutional issues the provisions of rule 16A
would then apply to parties
who wish to be admitted as
amici
curiae
.
[10] The appellant, represented
by the Centre for Child Law, filed heads of argument timeously.
Thereafter, on 11 October 2011 the
second respondent filed heads of
argument dealing with the questions to be determined on appeal.
Although there is a reference
contained in these heads to the
proposed
amicus curiae
having applied to be admitted as
amicus
curiae
, no such
application was on record.
[11] On 19 October 2011 i.e. 6
days before the hearing of the matter, the proposed
amicus
curiae
filed a notice of motion seeking leave to be admitted as
amicus
curiae
and seeking
leave for the opportunity to adduce additional evidence, which
evidence is set out in an affidavit filed in support
of the
application to be admitted as
amicus
curiae
.
[12] It is clear from the
contents of the affidavit that the proposed
amicus
curiae
applies to
present argument, which is substantially different to the arguments
already submitted by the appellant and the second
respondent. Heads
of argument were not filed when the application to be admitted as
amicus curiae
was filed. It was difficult to foreshadow the exact nature of the
argument to be submitted by the proposed
amicus
curiae
save that it in
the affidavit referred to legal argument as follows:
“
Rather this Court
should:
8.1 Hold
that the intention of the legislature as expressed through the
Children’s Act is at odds with the constitutional
requirements
in that it does not provide for orphans living with family to have
access to adequate and timeous social assistance
grants;
8.2 Hold
that the State should make the necessary legislative amendments by
end 2012 in light of this Court’s judgment to
clarify the
position and put the necessary structures and funding in place; and
8.3 Direct
that, as an interim measure, section 150(1)(a) of the Act has to be
interpreted to allow orphaned children living with
family to access
the Foster Child Grant.”
[13] The filing of heads of
argument timeously, with proper references to authorities, is an
important step in the hearing of any
appeal. It allows the presiding
judge to embark upon the necessary research and consideration of the
matter and arguments contained
in the parties’ heads of
argument prior to the hearing of an appeal. The hearing of appeals,
after research and having due
consideration to the argument submitted
to a court, allows for a court to be meaningfully engaged in
discourse during the hearing
of oral argument and has been a
cornerstone of successful appeal procedures in our courts. A judge
who has to listen to arguments
presented during the hearing,
unprepared as to the nature and extent of the argument, cannot do
justice to a matter before him
or her.
[14] In this matter there is an
attempt to radically depart from the prescribed appeal procedure and
the procedure prescribed in
Rule 16A. A proper consideration as to
whether the proposed
amicus
curiae
should be
allowed to be admitted as such, as well as the question whether it
should be allowed to present evidence and to change
the nature of the
appeal before the court, must, in my view, be considered with due
regard to the provisions of rule 16A.
[15] I am of the view that
pursuant to Uniform Rule 16A(2) an interested party may be admitted
as
amicus curiae
in proceedings by the court after exercising its discretion
judicially whether to admit a party to the proceedings after
consideration
of all the relevant facts. The admission of additional
facts is an entirely different question as there is no provision in
Rule
16A for the admission of such evidence. In order to justify the
placing of the additional facts before this court, the proposed
amicus curiae
relies on s 173 of the Constitution as read with Rule 31 of the
Constitutional Court Rules for its argument that additional facts

should be received on appeal. Should it be decided that, based on the
rule of the Constitutional Court, further evidence may be
lead,
further considerations come into play. Constitutional Court rule 31
also provides that “
All
other parties shall be entitled, within the time allowed by these
Rules for responding to such document, to admit, deny, controvert
or
elaborate upon such facts to the extent necessary and appropriate for
the proper decision by the court
”.
In deciding whether to import the provisions of the rules of the
Constitutional Court into an appeal hearing in a High
Court, it will
also have to be considered whether all the additional requirements
contained in Constitutional Court Rule 31 should
be complied with in
the High Court and not only the partial importation of the rule as
argued by the proposed
amicus
curiae
. But this
aspect need not be decided. There is no provision in the Uniform
Rules for the adducing of additional evidence before
a High Court.
“
The purpose of
the Rule is to enable parties interested in a constitutional issue to
seek to be admitted as amicus curiae in the
case in which the issue
is raised so that they can advance
submissions
in regard thereto
”
– per Farlam AJA (as he then was) in
Fourie
and Another v Minister of Home Affairs and Others
2005
(3) SA 429
(SCA) at 452 E – F. (My emphasis).
[16] S 173 of the Constitution
provides:
“
The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to
develop the common law, taking into account the interests of justice
”
The development of the common law
is not under consideration. The argument is that the court is
entitled to “regulate its
own process” by allowing the
admission of additional evidence in the same manner as the
Constitutional Court pursuant to
its Rule 31.
[17] In
Parbhoo
and others v Getz N.O. and another
1997 (4) SA 1096
(CC) it was said in par 4
“
Section
173 of the 1996 Constitution confers on the Constitutional Court the
inherent power to protect and regulate its own process.
In
S
v Pennington and Another
this
Court decided the following:
'Section
173 of the 1996 Constitution gives this Court an ''inherent power''
to ''protect'' and ''regulate'' its process. It is
a power which has
to be exercised with caution. It is not necessary to decide whether
it is subject to the same constraints as
the ''inherent reservoir of
power to regulate its procedures in the interests of the proper
administration of justice'' which vested
in the Appellate Division
prior to the passing of the 1996 Constitution. Even if it is
subject
to such constraints, the present situation, in which there is a
vacuum because the legislation and rules contemplated by
the
Constitution have not been passed, is an extraordinary one in which
it would be appropriate to exercise the power.’
Rule 16A(2) provides:
“
Subject
to the provisions of national legislation enacted in accordance with
section
171
of the Constitution of the Republic of South Africa, 1996 (Act No.
108
of 1996
),
and these rules, any interested party in a constitutional issue
raised in proceedings before a court may, with the written consent
of
all the parties to the proceedings, given not later than 20 days
after the filing of the affidavit or pleading in which the

constitutional issue was first raised, be admitted therein as
amicus
curiae
upon
such terms and conditions as may be agreed upon in writing by the
parties.”
[18] In
Phillips
and others v the National Director of Public Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC) at par 47 and 48 it was said:
“
[47]
The Constitution requires that judicial authority must vest in the
courts which must be independent and subject only to the
Constitution
and the law. Therefore courts derive their power from the
Constitution itself. They do not enjoy original jurisdiction

conferred by a source other than the Constitution. Moreover, in
procedural matters, s 171 makes plain that '(a)ll courts function
in
terms of national legislation and their rules and procedures must be
provided for in national legislation'. On the other hand,
s 173 of
the Constitution preserves the inherent power of the courts to
protect and regulate their own process in the interests
of justice…
[48]
In
Parbhoo
and Others v Getz NO and Another
too,
this Court turned to its 'inherent power' to meet an 'extraordinary'
procedural situation pending enactment of relevant
legislation and
promulgation of rules of procedure. In both cases the points are made
that ordinarily the power in s 173 to protect
and regulate relates to
the process of court and arises when there is a legislative
lacuna
in the process. The power must be exercised sparingly having taken
into account interests of justice in a manner consistent with
the
Constitution.”
[19] In
Western
Bank Ltd v Packery
1977 (3) SA 141(T)
, Coetzee J (as he then was) held at 141A-142E:
This
practice developed under the umbrella of the Supreme Court's inherent
power and is a typical example of its application. There
are,
however, clear and definite limits to this power, and the Court is
not,
merely in the interests of
justice,
at large to do or undo as it wishes in the field of adjectival law.
The Rules of Court are delegated legislation, have
statutory force
and are binding on the Court. In procedural matters the Court's
inherent power is summarised thus by Herbstein
and Van Winsen in
The
Civil Practice of the Superior Courts of South Africa
,
2nd ed., p. 23:
"Where,
for example, a particular matter is not provided for by the Rules of
Court, the Superior Courts will, in the exercise
of their inherent
powers, deal with it. The Court has thus an inherent power to order a
party to give particulars of an allegation
in his pleading, to strike
out portions of pleadings or to add further defendants either on the
application of a party or on its
own motion. In addition to powers
under any Rule of Court which might justify a particular procedure,
it has the power to prevent
any abuse of its process and to prevent
vexatious litigation. In the exercise of this power it can prohibit a
litigant from bringing
further proceedings without leave of the
Court, or may order a vexatious
litigant
to
give security for the costs of the other side".
The
learned authors refer in a footnote to the oft quoted
dictum
of GARDINER, J.P., in
Ncoweni
v Bezuidenhout
,
1927 CPD 130:
"The
Rules of procedure of this Court are devised for the purpose of
administering justice and not of hampering it,
and
where the Rules are deficient
I shall go as far as I can in granting orders which would help to
further the administration of justice".
(My
italics.) Thus, where a particular matter is provided for by the
Rules, and they can therefore not be said to be deficient in
that
respect, the scope for the exercise of inherent powers is limited to
prevention of abuse of its process. In
Hudson
v Hudson and Another
,
1927 AD 259
, DE VILLIERS, J.A., said:
"Every
Court has the inherent power to prevent the abuse of the machinery
provided for the purpose of expediting the
business of the Court."
and
at p. 268:
"...
but it is a power which has to be exercised with great caution, and
only in a clear case."
An
examination of the decisions
in
the Transvaal before 1965 in
which
a departure from a Rule of Court was allowed shows clearly that only
in two respects was this done and then only in the absence
of express
provision to the contrary and in proper circumstances. The Courts
have (1) extended provisions as to time for the doing
of any act and
(2) condoned certain irregularities or non-compliance with the Rules.
See
General
Plumbing Supplies (1956) (Pty.) Ltd
.
v
Continental
Engineering Co. (Pty.) Ltd
.,
1960
(3) SA 663 (W)
;
Lenz
Township Co. (Pty.) Ltd
.
v
Munnick
and Others
,
1959
(4) SA 567
(T)
;
Badenhorst
v Poultides
,
1963
(1) SA 471
(T)
;
Service
Motor Supplies (1956) (Pty.) Ltd
.
v
Fouche
and Another
,
1960
(3) SA 672 (W)
.
Cf.
Rich
and Others v Lagerwey
,
1974
(4) SA 748 (AD)
at p. 756, where WESSELS, J.A., said the following:
"Prior
to the coming into operation of the Uniform Rules on 15 January 1965,
DE WET, J.P., considered the question whether
a Court has an inherent
power to order the hearing of
viva
voce
evidence in provisional sentence cases - see
Extension
Investments (Pty.) Ltd
.
v
Ampro
Holdings (Pty.) Ltd
.,
1961
(3) SA 429 (W)
.
After surveying the Rule and authorities in
considering
the practice in the Courts, he concluded that the Court has no such
inherent power. I am in respectful agreement with
this conclusion. In
my opinion, a Court's power to order the hearing of oral evidence is
now governed by the provisions of Rule
87. I am, of course, not here
concerned with the defendant's right to require a plaintiff to give
evidence in terms of the provisions
of sec. 11 of the Limitation and
Disclosure of Finance Charges Act, 73 of 1968. I am, likewise, not
here concerned with the question
whether a Court has the power to
order the hearing of evidence, other than that relevant to the verity
of the defendant's signature
(or that of his agent), where the
exercise of a power purports to derive from the consent of the
parties. See
Williamson
v Dragon Mountain Inn (Pty.) Ltd.
,
1962
(3) SA 447 (N)
at p. 456D - F. I would observe that, having regard to the nature and
purpose of provisional sentence proceedings a Court would
exercise
such a power only in very exceptional circumstances".
It
is interesting to note that in the Uniform Rules these two grounds
for the exercise of its inherent power, namely the extension
of time
for doing any act, and the condonation of non-compliance with the
Rules, are the only ones which are now mentioned in Rule
27, on which
a departure from the Rules may be made by the Court. The fact that
the Rules contain such specific powers now seems
to me to be a strong
indication of an underlying intention that these are the only powers
of which the Court is now possessed in
this respect, save of course
the general overriding power to prevent an abuse of its process, as
set out in
Hudson's
case,
supra
.
In other words, only in those areas where the Rules are silent is
there still scope for exercising an inherent power, in the words
of
GARDINER, J.P., to grant orders "which would help to further the
administration of justice".
[20] The admission of evidence
before this court would, in my view, be creating a new right for
amici curiae
.
However, a High Court may not use its inherent jurisdiction to create
such a right. See
Oosthuizen
v RAF
2011 JOL 26286
(SCA) par 26.
[21] The Supreme Court Act 59 of
1959 (“the Supreme Court Act”) and the Uniform Rules have
been passed and promulgated
and provide for the procedure to be
followed and there is no legislative
lacuna
in the High Court
process. It, differently from the Constitutional Court procedure,
does not allow for the reception of evidence.
There is consequently
no basis in law for the reception of further evidence submitted by an
amicus curiae
in the High Court.
[22] Having regard to the aforegoing I am of the view that the
application to lead further evidence in a High Court has no basis
in
law and that the application to lead evidence should be refused.
[23] There is no proper
explanation why the application was brought at this late hour and no
substantive application for condonation
has been made for the
bringing of the application to be admitted as
amicus
curiae
outside the
time limits provided for in rule 16A.
In
Re Certain Amicus Curiae Applications: Minister of Health and others
v Treatment Action Campaign and others
2002
(5) SA 731
(CC) at 715D it was said “
To
this we would add that the application for amicus status must be made
timeously and, failing that, condonation must be sought
without
delay
”. I am of
the view that, in the absence of a substantive application for
condonation the proposed
amicus
curiae
should not be
admitted to appear at such a late stage of the proceedings. This
failure and its failure to bring the application
timeously as well as
the failure to file heads of argument disallow the proposed
amicus
curiae
to be admitted
in these proceedings today. However, by virtue of the fact that
amici
generally provide assistance to courts, we are prepared to postpone
this matter so that the proposed
amicus
curiae
can comply with
the provisions of Rule 16A in good time.
Hearing of appeal on urgent basis
[24] I now turn to the urgent
application. On 19 October 2011, 5 days prior to the hearing of the
appeal in the matter of SS, under
case number 3056/11, a notice of
motion was filed wherein urgent relief is sought. The relief sought
is to hear another matter
(the N C M matter), on appeal, on the same
day before the same court where the SS matter is to be heard.
[25] It is alleged that that
there are similarities between the two matters and that the argument
in the N C M matter will be similar
to the arguments in the SS matter
with the result that it will not serve the interests of justice to
separate the two matters as
both deal with one issue of law. No facts
to support the allegation that the interests of justice will not be
served by hearing
each matter separately have been placed before the
court. Indeed, it is clear from the affidavit that there are issues
in the N
C M matter, which are fundamentally different to the issues
in the SS matter. One overlapping argument does not justify that both

matters should be heard together.
[26] I am unpersuaded that a new
matter should be placed on an appeal roll on an urgent basis. Each
matter needs to be properly
evaluated. Although the affidavit in
support of the application to hear the matters together, refers to
heads of argument that
were filed at the request of my brother
Mokgoatlheng J on 14 October 2011, I was not favoured with these
heads of argument, nor
was he until 24 October 2011, a day prior to
the hearing. It is also said in the affidavit that my brother
Mokgoatlheng J required
that the proposed appellant file heads of
argument.
[27] It is a practice in this
Division for the registrars of judges to telephone legal
representatives of parties, when judges prepare
for the hearing of
appeals and heads of argument are absent, to enquire about such
absence. This would normally indicate whether
a matter is proceeding
or whether there was an administrative difficulty with the filing of
the heads of argument. The enquiry
is based purely on the records
received by judges from the Registrar’s office. It does not
constitute an invitation to a
party to file heads of argument, least
of all a party who is not a party to the proceedings, the latter
which are properly before
court. It is purely an administrative
function performed by the registrars of judges without having regard
to the entitlement or
content of the appeal otherwise of a party to
submit heads of argument.
[28] I am not prepared to deal
with NCM matter on appeal without having an opportunity of having due
regard to the record and argument
submitted prior to the date of
hearing and I repeat what I have said hereinbefore regarding the late
or non filing of heads of
argument by the
amicus
curiae
, which
observations are equally applicable to the urgent application.
Foster Care Parents
[29] A final matter to be dealt
with is the absence of the proposed foster care parents before this
court. They certainly have a
direct and substantial interest in the
matter. During the proceedings before the presiding officer it was
recorded that Mr and
Mrs L were present and that “
Application
was made that he/she/they join (s) the proceedings because: Present
caregivers and prospective foster parents
”.
They were present during the inquiry and were questioned thereat.
Utilising my inherent powers I would order that Mr and
Mrs L be
joined in these proceedings and it would suffice if an affidavit
attested to by them is filed in which they advise that
they are aware
of the proceedings and that they abide the outcome thereof, if they
so do. Such affidavit has no been filled and
they are properly before
us.
Orders
I propose the following orders:
[30] The application by the
proposed
amicus curiae
to lead further evidence in the High Court is refused.
[31] The application by the
proposed
amicus curiae
to be admitted as such is postponed
sine
die
. In order to allow
the proposed
amicus
curiae
to apply to be
admitted at the hearing of this matter everything necessary is to be
done within a period of two weeks of this order
by the filing of
appropriate papers. Thereafter the parties may move to have the
matter set down for hearing with due regard being
had to chapter 7 of
the Practice Manual of the South Gauteng High Court. If the parties
form the view that the matter might be
one of long duration i.e. that
the arguments might take longer than one day or that the matter
requires special allocation, the
Deputy Judge President should be
approached for appropriate directions regarding the hearing of the
matter.
[32] The application by the
second and third respondents to be admitted as respondents in the
appeal is granted.
[33] The application to hear the
appeal of the NCM matter under case number 3057/11 is refused.
_________________
Judge W L Wepener
Judge of the High Court
I agree, it is so ordered
Judge R Mokgoatlheng
Judge of the High Court
COUNSEL FOR
APPELLANT
.............................
MS
A SKELTON
INSTRUCTED
BY
..............................................
CENTRE
OF CHILD LAW
COUNSEL FOR SECOND
AND THIRD
…............
W
M MOKHARI SC
RESPONDENT
..................................................
Ms
N ALI
INSTRUCTED
BY
,..............................................
STATE
ATTORNEY
ATTORNEY FOR PROPOSED APPELLANT
.........
M
M MOTAUNG
INSTRUCTED
BY
...............................................
JOHANNESBURG
JUSTICE CENTRE
COUNSEL FOR PROPOSED AMICUS
CURIAE
.............................................................
S
BUDLENDER
INSTRUCTED
BY
................................................
LEGAL
RESOURCES CENTRE
DATE OF
APPEAL
..............................................
25
OCTOBER 2011
DATE OF
JUDGMENT
..........................................
25
OCTOBER 2011