SS v Presiding Officer of the Children’s Court: District of Krugersdorp and Others (14/1/4-206/10, A3056/11) [2012] ZAGPJHC 149; 2012 (6) SA 45 (GSJ) (29 August 2012)

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[2012] ZAGPJHC 149
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SS v Presiding Officer of the Children’s Court: District of Krugersdorp and Others (14/1/4-206/10, A3056/11) [2012] ZAGPJHC 149; 2012 (6) SA 45 (GSJ) (29 August 2012)

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REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CHILDREN’S COURT CASE NO:
14/1/4-206/10
APPEAL COURT CASE NO: A3056/11
DATE:29/08/2012
In the matter between:
SS
........................................................................................................................
Appellant
and
THE PRESIDING OFFICER OF THE
CHILDREN’S
COURT: DISTRICT OF
KRUGERSDORP
…..............................................
First
Respondent
MINISTER OF SOCIAL
DEVELOPMENT
….............................................
Second
Respondent
MEC FOR HEALTH & SOCIAL
DEVELOPMENT,
GAUTENG
.....................................................................................................
Third
Respondent
CHILDREN’S
INSTITUTE
.............................................................................
Amicus
Curiae
JUDGMENT
SALDULKER, J:
INTRODUCTION
[1] Children are the soul of our
society. If we fail them, then we have failed as a society. Mr
Mbuzeli Bennet Lamani and Mrs Nontobeko
Elizabeth Lamani, did not
fail SS, the minor child, and the appellant in this matter. He was
brought to live with them in 2002
by his mother, Ms Pheliwe Stemele,
during her lifetime when he was just over one year of age. They
raised him as their own child,
supporting him from their meagre
earnings. After the minor child’s mother died on 18 June 2007,
Mrs Lamani reported the matter
on 8 November 2007 to the
Department of Social Development in Krugersdorp. However, it appears
from the social worker, Ms
Natanya Kriel’s report that because
of the serious backlog in the casework of social workers, the case
was unattended until
it was brought to her attention in February
2010. It was then that the relevant investigation into the background
and foster screening
process to assist the Lamanis in their foster
care application for the minor child, began.
[2] An application for a foster care
order was brought by the Centre for Child Law on behalf of the minor
child and set down in
the Children’s Court in the District of
Krugersdorp. Pursuant to the inquiry in terms of s155(1) of the
Children’s
Act 38 of 2005 (“the Children’s Act”),
on 20 January 2011, the Child Commissioner, Mr M Du Plessis,
delivered
judgment including the order that the minor child was
inter alia, “not in need of care as envisaged in the Children’s

Act no 38 of 2005. No foster care order is made. It is recommended
that the applicants give consideration to the alternative mentioned

earlier in my judgment”.
[3] This appeal is against the
judgment and order of the Child Commissioner. It is specifically
directed against the finding by
the Child Commissioner that the minor
child is not in need of care and protection as envisaged in
s150(1)(a) of the Children’s
Act and the consequent refusal to
place the child in foster care. As a result of the findings made by
the Child Commissioner,
the second respondent, the Minister of Social
Development, sought to intervene in this appeal. The intervention of
the Minister
in this appeal centres on the issue that a proper
interpretation and application of the Children’s Act is
fundamental to
foster uniformity in the orders of judicial officers
in the Children’s Courts who deal with many applications for
foster
care and foster grants.
[4] An application at the outset of
this appeal for the Children’s Institute to be admitted as an
Amicus Curiae was also granted.
It was common cause in this appeal
amongst the parties that the Child Commissioner committed several
misdirections when he found
that the minor child was not a child in
need of care and protection as envisaged in s150(1)(a) of the
Children’s Act. There
was a commonality of views expressed by
all the parties that the Child Commissioner erred both on the facts
and the law in interpreting
s150(1)(a) and that the appeal should be
upheld and that the minor child be recognised as a child who is in
need of care and protection
in terms of the Children’s Act, and
that the Lamanis be admitted as his foster parents and that the minor
child be granted
a foster care grant.
[5] Furthermore, all the parties
accepted in this appeal that the minor child can obtain a foster
child grant if he falls within
the meaning of s150(1) (a) of the
Children’s Act, which provides that “A child is in need
of care and protection if,
the child has been abandoned or orphaned
and is without any visible means of support”. Although much
was made by all the
parties in regard to the question whether “and”
in the latter part of the section should read “or”, this

interpretation was abandoned by all the parties at the outset of the
hearing of the appeal.
[6] In my view, the Legislature
carefully chose the word “and”, suggesting a careful
deliberation to choose language
that is consistent with the intention
of the Children’s Act. The choice of the word “and”
was not casual or arbitrary
but intentional. The approach of the
Minister of Social Development in this regard was the correct one.
The “and”
should remain as an “and”
1
and the focus should be on the words “without any visible means
of support”.
[7] The question that needed to be
addressed was the proper interpretation of the words “without
any visible means of support”,
and whether the words pertained
solely to the means of the child and not the caregiver. All the
parties were of the view that the
Child Commissioner erred in his
interpretation of the phrase “without any visible means of
support”. The interpretation
of the clause in s 150(1)(a) must
be in accordance with s39(2) of the Constitution of the Republic of
South Africa Act 108 of 1996
(“the Constitution”) and in
keeping with the spirit, purport and the objects of the Bill of
Rights and the best interests
of the child.
BACKGROUND
[8] The child in this matter is an
orphan and is presently 12 years of age. He was born on 26 February
2000 in the Eastern Cape
where he lived with his mother and
grandmother. In 2002, after his grandmother died, his mother came to
Krugersdorp to her maternal
aunt and uncle, the Lamanis, who are the
present caregivers of the minor child, and left the minor child in
their care. Ms Stemele
accompanied Ms Lamani to the police station
where an affidavit was attested to, to enable Ms Lamani to receive a
child support
grant. Over the years she returned to visit the minor
child. However, in 2007, she became ill and on 18 June 2007, she
passed away.
She was never legally married, and did not appoint a
guardian to the minor child in the event of her death, nor did she
disclose
who the father of the minor child was, nor did any one
acknowledge paternity.
[9] It is common cause that the
Lamanis cared for and protected the minor child since he was a baby,
providing for his emotional,
psychological, physical and economic
needs. They have done so from their meagre earnings since 2002. It is
not in dispute that
their present financial circumstances are dire.
According to the social workers’ report the minor child has
developed a secure
and positive relationship with the Lamanis. Ms
Kriel screened the Lamanis and found them to be suitable foster
parents. Her report
concluded that he was a child in need of care and
protection in terms of s150(1)(a) of the Children’s Act. She
recommended
that he be placed in foster care with the Lamanis in
terms of s156 of the Act, and that a foster care grant be paid to the
Lamanis
and that the Department of Health and Social Development
render supervision services to the family.
[10] This appeal centres on the proper
interpretation of s150(1)(a) of the Children’s Act. It is
settled law that in the interpretation
of statutes a purposive
approach must be adopted, enquiring into the purpose for which the
provision was enacted, and interpreting
the provisions in cases of
doubt in such a manner as to advance and give effect to the purpose
of the legislation. According to
the Parliamentary Monitoring Group,
the Children’s Act of 2005 was intended to achieve the
following:
“
Overall, the Children’s
Act extended the responsibility of the State, and regulated a wider
range of services than those covered
by the Childcare Act. In
practice, this created the need for greater State capacity for the
registration and monitoring of a range
of new services, as well as a
responsibility on the state to create such new services where they
did not exist… Chapter
9 dealt with the child in need of care
and protection, provided for the identification of such children and
provided for actions
to be taken with regard to children.”
[11] S 150(1)(a) of the Children’s
Act reads as follows: “a child is in need of care and
protection if the child has
been abandoned or orphaned and is without
any visible means of support”. Axiomatically any interpretation
of s 150(1)(a)
must be in keeping with the constitutional rights of
children as embodied in the Constitution. S27(1)(c) of the
Constitution provides
that “everyone has the right to have
access to social security, including, if they are unable to support
themselves and their
dependants, appropriate social assistance”.
S 28(2) of the Constitution provides that “a child’s best
interests
are of paramount importance in every matter concerning the
child”.
[12] At the outset the Child
Commissioner regarded the minor child’s case as “a test
case”, because of numerous
factors, the main gravamen being the
different interpretations of s150(1)(a) of the Children’s Act,
by presiding officers
generally. The Child Commissioner rejected the
social workers’ report where they had after an investigation
concluded that
the minor child was a child in need of care and
protection as described in s150(1) of the Children’s Act in
that the child
“has been abandoned or orphaned and is without
any visible means of support”.
[13] The Child Commissioner relied on
s32
2
of the Children’s Act in finding that there was no need for the
Lamanis to apply for a foster care order because they were
already
taking care of the minor child, and thus the minor child was not in
need of care as envisaged in the Children’s Act.
According to
the Child Commissioner there was no need to legalise a placement
which was a family related one because it was catered
for by s32. In
my view, the Child Commissioner misconstrued the meaning of s32 of
the Children’s Act.
[14] The Children’s Court found
that “the main reason for the inquiry is to alleviate the
parties’ financial
position by a foster care order and receipt
of a foster grant”. Much reliance was placed on s32 which makes
provision for
the voluntary care of children by persons who have no
parental responsibility and rights in respect of the child. Such a
person
may or may not be a relative of the minor child. Whether the
minor child is a relative or not cannot be regarded as a decisive
factor. S32 clearly does not cater for a similar situation as foster
care. The Child Commissioner found that the present situation
of the
minor child was that he was being cared for by the Lamanis, who
voluntarily cared for him, and that his present “care
situation
is in accordance with the law and there is no reason to have it
legalised. Such caregivers rights and responsibilities
are similar to
those of a foster parent set out in Regulations 65 and 66 in terms of
the Act”. The Children’s Court
held that the minor child
was therefore not a child in need of care and protection and could
not be placed into foster care. The
court held that there were other
options available to the Lamanis to “confirm the legality of
their care situation, they
may apply for an alternative care order in
terms of s46(1)(a) or an adoption order in terms of s45(1) of the
Act”. These
orders, according to the presiding officer, “could
be granted without considering whether the child is in need of care
in
terms of section 150”.
[15] According to the Child
Commissioner the terms “abandoned” and “orphaned”
are defined in s 1 of the
Children’s Act and must be read with
Regulation 56. In terms of this regulation the Lamanis have claimed
“responsibility”
and this must include the
“responsibility to support the child and the child will then
have visible means of support”.
In the Child Commissioner’s
view his “interpretation of section 150(1)(b) is therefore that
a child is in need of care
and protection if the child has been
abandoned or orphaned and has no caregiver who is willing to support
the child”. Furthermore,
he stated that the argument “that
one must look at the child’s own ability to support
himself/herself in isolation
and should not take the caregivers
support in account, …does not hold water because when one does
not take the caregivers
support in consideration (whether the parent
is a caregiver or not) then almost all children will in effect be
without any means
of support. My opinion therefore is that as soon as
the child does receive some assistance from a caregiver, it cannot be
said
that the child has no visible means of support, even if the
assistance is very basic, it amounts to visible support”.
[16] The aforegoing view by the Child
Commissioner, is a very short-sighted and narrow interpretation of
s150(1)(a) of the Children’s
Act and does not properly take
into account Chapter 12 of the Children’s Act. On the Child
Commissioner’s interpretation
a child who has a caregiver
cannot be a child in need of care and protection and therefore cannot
be placed in foster care. On
his interpretation a child is in need
of care and protection if he has been abandoned or orphaned and has
no caregiver, and that
if any person claims or takes responsibility
then the child has “visible means of support,” and thus
cannot be a child
in need of care and protection in terms of
s150(1)(a) of the Children’s Act, and cannot be placed in the
foster care of the
caregiver. This interpretation by the Child
Commissioner is misplaced and completely ignores the existing
legislation regulating
foster care, in particular the provisions of
s156
3
of the Children’s Act.
[17] According to section 156(1)(e)
of the Children’s Act, if a court finds that a child is in need
of care and protection,
the court may make any order which is in the
best interests of the child, which may be, or include, an order- (e)
“if the
child has no parent or caregiver or has a parent or
caregiver but that person is unable or unsuitable to care for the
child, that
the child be placed in - (i) foster care with a suitable
foster parent”. (my emphasis)
[18] The purposes of foster care
according to s181 of the Children’s Act are to –
(a) protect and nurture children by
providing a safe, healthy environment with positive support;
(b) promote the goals of permanency
planning, first towards family reunification, or by connecting
children to other safe and nurturing
family relationships intended to
last a lifetime ; and
(c) respect the individual and family
by demonstrating a respect for cultural, ethnic and community
diversity.
[19] According to s182 (1) of the
Children’s Act: “Before a children’s court places a
child in foster care, the
court must follow the children’s
court processes stipulated in Part 2 of Chapter 9 to the extent that
the provisions of that
Part are applicable to the particular case”.
The Children’s Court processes stipulated in Part 2 of Chapter
9 are comprised
of section 155 to 160, which consist of the
following:
155. Decision of question whether
child is in need of care and protection;
156. Orders when a child is found to
be in need of care and protection;
157. Court orders to be aimed at
securing stability in child’s life;
158. Placement of child in child and
youth care centre;
159. Duration and extension of orders;
160. Regulations (my emphasis)
[20] The “child’s court
process”, will include a thorough investigation by social
workers, which will include
recommendations, inter alia to assist the
family, including counselling, mediation, family reconstruction, and
to provide protection
and care services in the placement of children
into alternative care, including foster care. If the court finds that
the child
is in need of care and protection, the court may make an
appropriate order in terms of s 156. The section contains safety
mechanisms,
as children are at risk and are especially vulnerable to
abuse, neglect, exploitation or trafficking.
[21] An inquiry has to be undertaken
in every case as per Chapter 9 of the Children’s Act, to decide
the question of whether
a child is in need of care and protection. A
designated social worker must investigate the matter and compile a
report. When deciding
the question of whether a child is in need of
care and protection, the court must have regard to the report of the
social worker.
[22] Moreover, in terms of s186(2) of
the Children’s Act :
“
A children’s court may ….
having considered the need for creating stability in the child’s
life, place a child
in foster care with a family member for more than
two years, extend such an order for more than two years at a time or
order that
the foster care placement subsists until the child turns
18 years, if-
The child has been abandoned by the
biological parents; or
the child’s biological parents
are deceased…”
[23] Chapter 12 (ss 180-190) of the
Children’s Act sets out the provisions governing “Foster
Care”. S180(3) provides
that a Children’s Court may
place a child in foster care with a person who is not a family member
of the child, and also
with a family member who is not the parent or
guardian of the child. Therefore, to exclude children who are in
placement with families
who are related to them from receiving foster
care grants, if circumstances permit, would be contradictory to the
terms of the
Children’s Act. For the purposes of the Children’s
Act, clearly relatives may be eligible foster parents for abandoned

or orphaned children, as “every child has the right to family
care or parental care”. To include the possibility of
family
members or other caregivers who have taken on the task of caring for
a child being considered as foster parents of abandoned
or orphaned
children would be consistent with the tenor of the Children’s
Act, taking into account its emphasis on permanency,
the preservation
and the strengthening of family ties.
[24] S8 of the Social Assistance Act
13 of 2004 (“the
Social Assistance Act&rdquo
;), provides that a
foster parent
4
is, subject to
section 5
, eligible for a foster child grant for as
long as the child needs such care, if - (a) the foster child is in
need of care; and
(b) he or she satisfies the requirements of the
Child Care Act (now the Children’s Act).
S5
of the
Social
Assistance Act is
headed “Eligibility for Social Assistance”
and
s5(2)
provides that the Minister may prescribe income threshold;
and means testing. However,
s18
of the
Social Assistance Act
indicates
that the financial criteria in terms of which applicants
for a grant qualify are set out in Annexures A-D of the Regulations.
Annexure
C, which applies specifically to foster child grants,
significantly states the following: (2) “A foster parent
qualifies
for a foster child grant regardless of such foster parent’s
income”. The Children’s Act does not set out a means
test
to be applied nor does it provide for an investigation into the
earnings of foster parents. In fact the Children’s Act
provides
only that a court determine whether a child is in need of care and
protection, and after making such a finding, may make
an order
placing a child in foster care. The
Social Assistance Act
categorically
states that a foster parent qualifies for a foster care
grant regardless of his/her income.
[25] The question whether a court may
make an order that a child be placed in foster care in terms of
s46
of the Children’s Act can easily be answered: A court may not.
The reason is that s182(1) of the Act stipulates that before
a
Children’s Court places a child in foster care, the court must
follow the Children’s Court processes stipulated in
Part 2 of
Chapter 9 (supra).
THE APPLICATION OF S150(1)(a)
[26] In setting out the guidelines
which follow, this court has been assisted by the submissions of the
parties. This court has
borrowed substantially from their heads of
argument in the preparation of this judgment, and extends its
appreciation to all the
parties involved in this matter, including
the amicus curiae.
[27] The application of s 150(1)(a) of
the Children’s Act involves a factual inquiry that enables a
determination that is
consistent with the best interests of the
child, abides by the spirit of the Children’s Act and is
consistent with the Constitution
of the Republic of South Africa Act
108 of 1996 (the Constitution).
[28] The first stage of inquiry under
s150 is for presiding officers to determine whether the child is in
need of care and protection,
if the child falls under the definitions
of “orphaned” or “abandoned”. The Children’s
Act limits
the categories of children to orphans and those who are
abandoned. This is a factual inquiry which can be easily determined.
S1
of the Children’s Act defines an orphan as “a child
who has no surviving parent caring for him or her”, and
abandoned
means “a child that has obviously been deserted by
the parent, guardian or caregiver” or “has for no
apparent
reason had no contact with the parent, guardian or caregiver
for a period of at least six months”.
[29] This first stage of the inquiry
into the minor child’s situation, will be reliant on reports of
the social workers who
are deployed to carry out an investigation,
which must necessarily include an investigation into the current
living arrangements
of the child, the identity of the present and
prospective caregivers, and the status of their relationship to the
child, whether
familial or otherwise. It will entail taking into
account a conspectus of factors pertaining to the minor child’s
emotional,
physical and psychological wellbeing. Should the first
stage of the inquiry reveal that the child is in need of care and
protection,
as he/she has been abandoned or orphaned, then the child
may become a ward of the state and may be assigned to the care of
foster
parents. A child who has been orphaned or abandoned, and who
is living with a caregiver who does not have a common law duty of
support towards such child, may be placed in foster care with that
caregiver.
[30] The Child Commissioner must then
turn to the second stage of the inquiry and determine whether the
minor child is “without
any visible means of support”.
This inquiry includes a consideration of whether there is a legal
duty of support resting
on someone in respect of the child and
whether, in addition to the status of being orphaned or abandoned,
the child has the means
currently, or whether the child has an
enforceable claim for support. The focus of the inquiry at the second
stage, is on the child
and therefore the Child Commissioner must look
at the minor child’s personal financial resources.
[31] The word “visible”
plays a critical role in s150(1)(a) of the Children’s Act.
“Visible” is to
be given its ordinary grammatical
meaning. The Oxford English dictionary (“The New Shorter
Oxford English Dictionary on
historical principles 1993”)
describes the relevant meaning of “visible” as: “clearly
or readily evident”;
“apparent”; “obvious”.
Black’s Law Dictionary
5
9th Edition defines the phrase “visible means of support”
as “an apparent method of earning a livelihood”.
Black’s
Law dictionary further explains that “vagrancy statutes
6
have long used this phrase to describe those who have no ostensible
ability to support themselves”. The phrase suggests that
the
individual in question is the focus of the inquiry into visible means
of support, rather than others upon whom he or she is
dependant. The
questions to be asked are: Does the minor child have the means to
support him/herself and: Is the means of support
readily evident,
obvious or apparent? The inquiry into the means of the minor child
is a factual one, focusing on the financial
means of the minor child
and not on the financial means of the proposed foster parents. The
fact that Annexure C to the Regulations
to the
Social Assistance Act
states
that “a foster parent qualifies for a foster child grant
regardless of such foster parents income’, makes it abundantly

clear that it cannot be the foster parent’s means of support
that is under scrutiny. Furthermore, neither the Children’s
Act
nor the
Social Assistance Act nor the
appended Regulations require an
examination of the foster parent’s income.
[32] It is necessary in carrying out
the second stage of the inquiry to examine whether there is any
obligation on any person to
provide a duty of support to the minor
child, including the current caregiver. If the minor child is not
readily able to access
any means of support, then
s150(1)(a)
of the
Children’s Act will apply, in that the child is in need of care
and protection, is without visible means of support
and in addition
to being in the care of foster parents, is in need of a foster care
grant. The foster care grant will then be accessed
by the minor
child’s foster parents.
[33] The law relating to the duty of
support can be summarised as follows: Biological parents of children,
whether married or unmarried,
have a duty of support.
7
Adoptive parents are considered the parents of a child once the
adoption is concluded, and have a duty of support.
8
This is also true of children conceived by artificial fertilisation
9
and surrogacy arrangements.
10
Both maternal and paternal grandparents, regardless of whether the
mother and father were married,
11
have a duty of support. Siblings have a duty of support.
12
Step-parents generally do not have a duty of support, but have been
found to have a limited duty of support in narrowly defined

circumstances.
13
Aunts and uncles bear no responsibility to support their nieces and
nephews.
14
In determining whether any person has a legal duty of support in
respect of a minor child, cognisance must also be taken of customary

law.
15
[34] Fathers and mothers, whether
married or unmarried, have a legal duty of support to support their
children. However, the definitions
of “orphan” and
“abandoned” reduce the number of situations where the
father or mother of a child will
be “readily evident” as
a source of support. If the whereabouts of the father are easily
ascertainable, but the child
is not being cared for by the father,
for example where the father lives in another town, then foster care
with the current caregiver
may be the most suitable option, depending
on the facts. In such instances, the Children’s Courts may be
assisted in their
determination by considering the factors set out in
s 7
16
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16
of the Children’s Act, to determine the best interests of the
child.
[35] Siblings also have a duty of
support. However, if they are also children, they would not have the
means, and if the children
are living in a child headed household
that is in itself a ground on which a finding of “in need of
care and protection”
can be made in terms of
s150(2)(b).
[36] It should be borne in mind that
even if there is a relative somewhere who has a legal duty of
support, the court could still
find that the child “is orphaned
or abandoned and without visible means of support” in certain
circumstances, to be
determined on the facts of each case.
[37] In order to resolve the problem
the State would then be taking over the responsibility for the child
by placing him or her
in foster care, which is a form of alternative
care.
S161
, dealing with contribution orders, provides that a
Children’s Court may make an order instructing a respondent to
pay a sum
of money or a recurrent sum of money as a contribution
towards the maintenance of a child placed in alternative care, which
has
the effect of a maintenance order.
[38] In the case before us, the minor
child is an orphan, is 12 years of age, has neither parents nor
siblings nor grandparents.
The Lamanis, the present caregivers of the
minor child, are the minor child’s aunt and uncle and not his
parents. They owe
him no parental duties and responsibilities nor do
they have a legal duty to support him.
S32
therefore cannot be an
adequate substitute for foster care. The Child Commissioner erred in
finding that because the minor child
was in the care of defacto
caregivers, the Lamanis, he therefore had “visible means of
support”, and this meant that
he was not in need of care and
protection, and therefore could not be placed into foster care. On
the Child Commissioner’s
interpretation, many relatives who
step in to care for children orphaned or abandoned will be cut off
from social services via
the foster care process. The Child
Commissioner found that because the minor child had a caregiver he
could not be placed in
foster care, a finding which is completely at
odds with the spirit of the Children’s Act. The Child
Commissioner erred in
finding that the words “visible means of
support” meant that the orphaned or abandoned child had no
person to care
for him. The conclusion by the Child Commissioner that
because the Lamanis had in fact stepped in to look after the minor
child
at a tender age, he therefore had “visible means of
support” and was thus excluded from foster care services, is an

implausible interpretation of
s 150(1)(a)
of the Children’s
Act, and could not have been the intention of the legislature.
[39] It will not be in the interests
of children to take a rigid, overly formalistic approach to the
interpretation of
s 150(1)(a).
With reference to the guidelines set
out above, the Children’s Courts should take a flexible
approach appropriate for the
determination of the best interests of
the child in each case. It must be emphasised that the role of the
judicial officers is
to interpret
s150(1)(a)
of the Children’s
Act in a constitutionally compliant way and not to concern themselves
with “reducing the number of
children’s court cases with
more or less 70%”
17
.
As observed by the Constitutional Court in S v M (Centre for Child
Law as Amicus Curiae),
18
“[a] truly principled child-centred approach requires a close
and individualised examination of the precise real-life situation
of
the particular child involved. To apply a pre-determined formula for
the sake of certainty, irrespective of the circumstances,
would in
fact be contrary to the best interests of the child concerned.”
[40] Reading the phrase “visible
means of support” as relating to the caregiver’s means
runs contrary to the best
interests of the child in that, if family
members that are current caregivers are excluded from being eligible
for foster care
grants, then this may dissuade them from stepping in
to help to support the minor child early in the orphanage of that
child. It
would appear that the intent of the legislature was for
judicial officers to read
s150(1)(a)
of the Children’s Act as
requiring two stages of inquiry, and the application and examination
of the phrase “without
any visible means of support”
being confined to the child without regard to the caregiver. This
would be consistent not only
with the plain meaning of the statute,
but also with the legislative intent. Interpreting the phrase in the
aforegoing way, will
also promote familial caregivers.
[41] I find that the Child
Commissioner erred in the interpretation of the phrase “without
visible means of support”
in
s 150
(1)(a) to mean that “
a child is in need of care and protection if the child has been
abandoned or orphaned and has no caregiver
who is willing to support
the chid”. He should have interpreted the words “without
visible means of support”
in the manner set out above and
should accordingly have found the minor child to be in need of care
and protection, and placed
him in the foster care of the Lamanis.
[42] In this case, as the minor child
is related to his foster parents, he should be placed in their foster
care until he turns
18 years. This is so because he qualifies in
terms of
s 186(2)
of the Children’s Act for foster care of
extended duration, due to the fact that he is an orphan as defined by
the Children’s
Act and there is no possibility of reunifying
him with either of his biological parents.
[43] Having regard to all of the
aforegoing, I find that in terms of
s150(1)(a)
of the Children’s
Act the minor child who is an orphan, is in need of care and
protection and is without any visible means
of support, and is placed
in the foster care of the Lamanis.
[44] In the result, the following
order is made:
(a) The appeal is upheld.
(b) SS, born 26 February 2000, is
found to be in need of care and protection and is placed in foster
care in terms of
section 186(2)
of the Children’s Act 38 of
2005, with his aunt and uncle, Mrs Nontobeko Elizabeth Lamani and Mr
Mbuzeli Bennett Lamani (hereinafter
referred to as the foster
parents)
(c) A foster care grant in relation to
SS is to be paid to the foster parents for the duration of the foster
care order, backdated
to 20 January 2011, when the Children’s
Court handed down its judgment.
(d) Although the full names of the
parties are included in this order to facilitate the payment of the
foster care grant, no information
that identifies or may identify the
minor child is to be published, in accordance with
section 74
of the
Children’s Act.
(e) There is no order as to costs.
H SALDULKER
JUDGE OF THE SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
I agree
____________________________
MVR
POTGIETER
ACTING JUDGE OF THE SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
ATTORNEY FOR APPELLANT: CENTRE FOR
CHILD LAW
C/O GORDON STEVEN
COUNSEL FOR APPELLANT: ADV. A.M.
SKELTON
ATTORNEY FOR RESPONDENTS: STATE
ATTORNEY
COUNSEL FOR RESPONDENTS: ADV W.
MOKHARE WITH ADV. N. ALI
ATTORNEY FOR AMICUS CURIAE: LEGAL
RESOURCES CENRTRE
COUNSEL FOR AMICUS CURIAE: ADV. S.
BUDLINDER
JUDGMENT RESERVED: 19 APRIL 2012
DATE OF JUDGMENT: 29 AUGUST 2012
1

Investigating
Directorate: Serious Economic Offences and Others
v
Hyundai
Motor Distributors (Pty) Ltd and Others
: In re
Hyundai
Motor Distributors (Pty) Ltd and Others v Smit NO and Others
2001(1) SA 545(CC ) at para 24;
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation ,
Mediation and Arbitration and Others
2009(1)
SA 390 (CC) at para 41;
Preddy
and Another v Health Professions Council of South Africa
2008(4) SA 434(SCA) at para12;
Ngcobo
and Others v Salimba
CC;
Ngcobo
v Van Rensburg
1999 (2) SA 1057
(SCA), at para11 : ‘it seems to me that there
must be compelling reasons why the words used by the legislature
should be
replaced; In casu why ‘and’ should be read to
mean ‘or’ or vice versa. 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…’Such
grounds will include that if we give ‘and’
or ‘or’
their natural meaning, the interpretation of the section under
discussion will be unreasonable, inconsistent
or unjust….or
that the result will be absurd…or, I would add,
unconstitutional or contrary to the spirit, purport
and objects of
the Bill of Rights (s 39(2) of the 1996 Constitution)’.
2

‘32
Care of child by persons not holding parental responsibilities and
rights-
(1) A person
who has no parental responsibilities and rights in respect of a
child but who voluntarily cares for the child either
indefinitely,
temporarily or partially, including a caregiver who otherwise has no
parental responsibilities and rights in respect
of a child, must ,
whilst the child is in that person’s care-
(a) safeguard
the child’s health, wellbeing and development; and
(b) protect
the child from maltreatment, abuse, neglect, degradation,
discrimination, ….
3
“156.
Orders when child is found to be in need of care and protection –
(1) If a children’s court finds that
a child is in need of
care and protection the court may make any order which is in the
best interest of the child, which may
be or include an order –
(a) to (k) and (2), (3) and (4)…. “
4

S7 of
the Ministerial regulations of the Social Assistance Act states:’(a)
In addition to the requirements contemplated
in section 8 of the
Act, a foster parent is eligible for a foster care grant if the
child is placed in his or her custody in
terms of the Child Care Act
1983; (b) child remains in his or her custody; and (c) foster parent
is a south African citizen…
5

9
th
Edition, Thomson West , p1602
6
Black’s
Law Dictionary – Seventh Edition p 1547 – Bryan A
Garner. Vagrancy is defined as “The state or
condition of
wandering from place to place without a home, job, or means of
support. “See
Smith
v Drew
,
26 P.2d 1040
(Wash. 1933). Many state laws prohibiting vagrancy have
been declared unconstitutionally vague”.
7

This common law principle is now also reflected in section 18(2)(d)
of the Children’s Act 38 of 2005 which lists “
to
contribute to the maintenance of the child
”
as among parental responsibilities and rights.
8
This common law principle is also reflected in the Children’s
Act. Section 242(2) sets out the effect of adoption which
confers
full parental responsibilities and rights in respect of the adopted
child upon the adoptive parent, and 242(3) which
states that “
An
adopted child must for all purposes be regarded as the child of the
adoptive parent, and an adoptive parent, must for all purposes
be
regarded as the parent of the adopted child
”.
9
Section 40(1)(a) of the Children’s Act provides that the
child born as a result of the artificial insemination of one
spouse
must “
for all
purposes be regarded to be the child of those spouses
”.
10
Section 297(1)(a): “[
A]ny
child born of a surrogate mother in accordance with the agreement is
for all purposes the child of commissioning parents
from the moment
of the birth of the child concerned
”.
11
N van Schalkwyk “
Maintenance
for children
”
in T Boezaart (ed)
Child
Law in South Africa
(2009)
44-45. The case of
Barnes
v Union and South West Africa Insurance Co Ltd
1977 (3) SA 502
(E) held that there is an order of priority, and if
parents are not able to support their children, the duty falls first
on paternal
and maternal grandparents. In
Petersen
v Maintenance office, Simon’s Town Maintenance Court and
Others
2004 92) SA 56
(C) the court recognised that paternal grandparents also have a duty
of maintenance towards a child whose parents were not married.
12
According to Van Shalkwyk (44), Voet (25.3.7) set a hierarchy of
duty of support, which requires grandparents, and failing them,

great grandparents in the direct line to support a child, before
those in the collateral line eg brothers and sisters.
13
In
Heysteck v
Heysteck
2002 (2) SA
754
(T) the mother had remarried in community of property, and the
court awarded maintenance
pendente
lite
, as a result of
the shared responsibility. In
MB
v NB
2010 (3) SA 220
(GSJ) the child was not formally adopted, but used the surname of
the stepfather. The stepfather was found liable for school
fees as
he had held himself out to be “
the
father
” on the
school application form.
14
N van Schalkwyk in T Boezaart (ed) 47.
15
See:
Kewana
v Santam Insurance Co Ltd
1993(4)
SA 771 (Tk AD).;
Maneli
v Maneli
2010 (7) BCLR 708 (GSJ)
16
Best interests of child standard. – (1) Whenever a provision
of this Act requires the best interests of the child standard
to be
applied, the following factors must be taken into consideration
where relevant, namely – (a) to (n) and (2)…”
17
Judgment of the Child Commissioner, p 14
18

[2007] ZACC 18
;
2008 (3) SA 232
(CC) para 24.