NM v Presiding Officer of the Children’s Court, District of Krugersdorp and Others (A3075/2011) [2013] ZAGPJHC 64; 2013 (4) SA 379 (GSJ); [2013] 3 All SA 471 (GSJ) (12 April 2013)

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[2013] ZAGPJHC 64
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NM v Presiding Officer of the Children’s Court, District of Krugersdorp and Others (A3075/2011) [2013] ZAGPJHC 64; 2013 (4) SA 379 (GSJ); [2013] 3 All SA 471 (GSJ) (12 April 2013)

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REPUBLIC OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT JOHANNESBURG
CASE NO: A3075/2011
DATE: 12/04/2013
In the matter between:
NCM
................................................................................................................
Appellant
MM
......................................................................................................................
Child 1
OM
.......................................................................................................................
Child
2
OM
......................................................................................................................
Child
3
and
THE
PRESIDING OFFICER OF THE
CHILDREN’S COURT, DISTRICT OF
KRUGERSDORP
..........
1
st
Respondent
MINISTER OF SOCIAL
DEVELOPMENT
....................................
2
nd
Respondent
MEC
FOR HEALTH AND SOCIAL
DEVELOPMENT,
GAUTENG
.........................................................
3
rd
Respondent
J U D G M E NT
CARELSE, J:
[1] An order in terms of s 150(1)(a) of the Children’s Act 38
of 2005 (“the Act”) was sought in the Children’s

Court by the appellant, the grandmother of the M children (“the
children”), that the children be found to be in need
of care
and protection; that they be placed in her foster care and that a
foster care grant be made available to her in order
to take care of
the children. A social worker’s report was compiled
recommending the aforegoing. On 26 April 2011, the
Commissioner of
the Children’s Court, Krugersdorp ordered
inter alia
that the children are “
not
in need of care
” on the basis that
“they
have visible means of support and that they have a caregiver who is
able and suitable to care for them”.
[2] This appeal lies against the whole of the judgment and orders
that were made by the Commissioner of the Children’s Court,
Mr
Du Plessis.
[3] This appeal concerns the correct interpretation of s 150(1)(a)
of the Act. Before determining the merits of this appeal it
is
necessary to deal with 2 preliminary issues.
The first preliminary issue
[4] It is apparent from a number of conflicting orders and reasons
emanating from the Children’s Court that confusion reigns

insofar as the interpretation of s 150(1)(a) of the Act is concerned.
As a result hereof the Minister of Social Development, the
second
respondent, sought to intervene in these proceedings on the basis
that a proper interpretation and application of s 150(1)(a)
of the
Act is required in order to foster uniformity in the various
Children’s Courts who deal with many applications for
foster
care and foster care grants. Both counsel for the appellant and for
the second respondent submitted that an authoritative
judgment is
required to end the confusion around the interpretation of s
150(1)(a) of the Act. In the view I take of this matter,
it is not
necessary to grant an order for intervention since the Minister of
Social Development has been cited as a party and has
accordingly been
joined. In any event the issue at hand is of considerable importance
and the participation of the Minister is
important. The second
respondent does not oppose the appeal, instead she supports the
appeal.
The second preliminary issue
[5] The appellant raised a point
in limine
. The appellant was
legally represented by Legal Aid South Africa. Nowhere on the record
does it appear that the Commissioner of
the Children’s Court
was too concerned about legal representation on behalf of the
children. The question that arises is
whether or not there is a duty
upon the Commissioner of the Children’s Court to instruct legal
representation for the children
or to inform the appellant that she
may approach the Legal Aid Board for legal representation for the
children.
[6] Both Counsel for the appellant and the second respondent agreed
that there is a duty upon the Commissioner for the Children’s

Court to at the very least inform the appellant that she may approach
the Legal Aid Board for assistance for the children.
These
are minor children whose rights must be jealously guarded
particularly in matters which may adversely affect them as it has
in
this case. More so s 28(1)(h) of the Bill of Rights in the
Constitution of the Republic of South Africa provides:
“
Every 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.”
[7] In my view there is a duty on the Commissioner of the Children’s
Court to at the very least inform the appellant that
she could
approach the Legal Aid Board for assistance for the children. To set
aside these proceedings would result in the matter
starting
de
novo
in the Children’s Court. In my view that would not be
in the interests of justice. The delay in determining the correct
interpretation
of s 150(1)(a) of the Act will result in substantial
injustice given the conflicting orders emanating from the Children’s

Court. Furthermore in this case “
substantial
injustice
” will not occur if the children in this
instance were not provided legal representation because the outcome
of this appeal
is in favour of the children’s interest which
makes it unnecessary to appoint legal representation for them.
[8] The interpretation of s 150(1)(a) of the Act has been dealt with
by this Court on appeal in the case of SS v Presiding Officer,

Children’s Court Krugersdorp and Others
2012(6)
SA 45 (GSJ)
(“the
Stemele
matter”)
which was delivered in August 2012 in which the Court held:
“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.
1
”
[9] This
appeal is similar to the
Stemele
appeal insofar as it deals with the interpretation of s 150(1)(a) of
the Act. The issue in this appeal is simply whether a caregiver
who
does owe a legal duty of care may be appointed a foster care parent.
Also whether a foster care grant may be granted by the
first
respondent. The facts in this case are distinguishable from the facts
in the
Stemele
matter to the extent that the caregiver in the
Stemele
matter did not owe a legal duty of care to the children the caregiver
wished to foster and receive a foster care grant.
Relevant background facts
[10]
According
to the social worker’s report, the biological mother of the
three minor children who were born on 21 November 2000,
7 March 2006
and 7 March 2006 (twins), died on 17 October 2008. Ms NC M, the
appellant is the maternal grandmother of the children.
Initially the
biological father was identified as I R. However, DNA tests excluded
him from being the father. Sadly, the biological
father is unknown.
The children are orphaned. Hence, the children together with their
biological mother have lived with the appellant
since birth. The
three minor children continue to live with her, the appellant, in
Kagiso. The children have bonded well with
the appellant as well as
the extended family.
[11] The appellant receives a disability grant of R1 010.00, a foster
care grant of R710.00 for one of the other grandchildren
and a child
support grant of R750.00 for the three children concerned, totalling
R2 470.00.The appellant’s expenses
include groceries of
R1000. 00, electricity of R400.00, water of R200.00, insurance of
R150.00, school fees of R440.00, transport
costs of R660.00. The
total expenses are R2 850.00. The appellant has a clear
shortfall. According to the social worker’s
report the children
need to be taken care of by the appellant who does not have adequate
financial means to support the children.
[12] The social worker recommended that the children were in need of
care and protection in terms of s 150(1)(a) of the Act. The
social
worker further recommended that the children be placed in the foster
care of the appellant and that a foster care grant
be paid to the
appellant. This would amount to R2 130.00 in respect of the three
minor children. The Commissioner of the Children’s
Court
disagreed.
[13] I turn
now to deal with the judgment of the Commissioner of the Children’s
Court who relied on s 32 of the Children’s
Act on the basis
that there was no need for the appellant to apply for a foster care
order because the appellant was already taking
care of the children
and the children were therefore not in need of care and protection.
As a result hereof the Commissioner of
Children’s Court found
that there was no reason to legalise the placement of the children.
This finding in our view is misplaced
for the following reasons: the
Commissioner should firstly have enquired whether the children are in
need of care and whether they
have any visible means of support; the
Commissioner erred by collapsing the two inquiries into one; because
the children were
in the care of a
de
facto
caregiver there was no need to place them in foster care as they were
not in need of care; and the children have visible means
of support
because they have a caregiver who is able and suitable to care for
them; and in the determination of the question of
visible means of
support the commissioner was required to consider whether the
children have visible means of support and not
whether the caregiver
has visible means of support. The inquiry into whether the
caregiver has the means of support is a secondary
inquiry.
[14] There was
a concerted effort by the Commissioner in this case as was done in
the
Stemele
case
to address the financial position. The Commissioner referred to the
Social Assistance Act No 13 of 2004
in particular
s 4(c)
which makes
provision under what circumstances a foster grant is ordered.
2
The court of Appeal in the
Stemele
matter with respect correctly held:
”
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 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.”
[15] In the
Stemele
matter the court held that a court cannot
make an order that a child be placed in foster care in terms of
s 46
of the Children’s Act because before a court can do so a court
must follow the Children’s Court processes contained
in
Part 2
of Chapter 9 of the Act.
[16] Having regard to the aforegoing the findings of the Commissioner
can only lead to untold hardships for the many children who
are in
the care of their grandparents. This is the reality of our society.
To perpetuate these hardships will be to defeat the
objects and
spirit of our Constitution and will not be in the best interests of
children. As a result hereof, the appellant has
brought this appeal
on behalf of the three minor children.
The relevant statutory provisions and legal principles
[17] Section 150(1) (a) of the Children’s Court Act 38 of 2005
provides:
“
S 150
Child in need of care and protection
(1) A child is in need
of care and protection if, the child –
(a) has been
abandoned
or orphaned and is
without any visible means of support
…” (my emphasis)
[18] S 28 of the Constitution of the Republic of South Africa
provides that:
“
(1) Every child has the
right –
…
to family care of parental
care, or to appropriate alternative care when removed from the
family environment care;
to basic nutrition, shelter,
basic health care services and social services ..
(2) A child’s best
interest are of paramount importance in every matter concerning the
child.”
[19] It is
settled law that when interpreting any legislation a purposive
approach must be followed and regard must be had to the
spirit,
purport and objects of the Bill of Rights
3
.
Section 181 of Chapter 12 of Act 38 of 2005 provides:
“
181. Purposes of
foster care
The purposes of foster care are
to –
protect and nurture children by
providing a safe, healthy environment with positive support;
promote the goals of permanency
planning, first towards family reunification,
or by connecting children to
other safe nurturing family relationships intended to last a
lifetime; and
respect the individual and
family by demonstrating a respect for cultural, ethnic and community
diversity.”
[20] On a
proper reading of the judgment of the court
a quo
in the
Stemele
matter
as well as in this matter, the court found that because the appellant
had visible means of support, the children were not
in need of care.
This approach was criticised on Appeal in
Stemele
supra.
In
the
Stemele
matter the Court of Appeal adopted a two stage inquiry when
interpreting s 150(1)(a) of the Children’s Court Act. With
respect
we agree with this approach and intend to follow it in the
determination of this matter.
[21] It was
held in
Stemele
supra
that
“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”)”
.
4
Insofar as the first stage of the inquiry is concerned the Court of
Appeal in the
Stemele
matter held:
“
The
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
well-being.
5
”
Insofar as the second stage of the inquiry is concerned the Court of
Appeal further held:
“…
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.”
Need of care and protection inquiry
[22] In the
determination of this issue the court must have regard to the social
worker’s report which contains the following
information: the
current living arrangements of the children, the identity of the
present and prospective caregivers and the status
of their
relationship to the children as well as the children’s
emotional, physical and psychological wellbeing
6
which must be applied in a way 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 Court of Appeal in the Stemele
matter
held that:
“
Should the first stage of
the inquiry reveal that the child is in need of care and protection,
as/he 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.”
[23] The Court of Appeal in the
Stemele
matter
supra
further held:
“
A child who has been
orphaned or abandoned, and who is living with a care giver who
does not have a common law duty of support
towards such a child may
be placed in foster care with that care giver.”
[24] The
facts in the
Stemele
matter relate only to those children who are living with caregivers
who do not have a common law duty of support towards the children.

This case however, relates to children who are living with caregivers
who do owe them a common law duty of support. On this basis
the facts
in the
Stemele
matter are clearly distinguishable from the facts of this case.
Counsel for the respondents submitted that the above finding
7
should not be limited only to those children who are living with
caregivers who do not have a common law duty towards the children.

The inquiry should also extend to those children who are living with
caregivers who owe children a duty of support. It is trite
law that
grandparents like parents have a common law duty of support towards
the children. This legal position is consistent with
our
Constitution. Counsel for the respondents submitted that the effect
of the aforegoing finding in the
Stemele
matter
would exclude the appellant from becoming the foster parent of the
children in this case. Such a conclusion would exclude
children in
the care of their grandparents who are found to be abandoned or
orphaned from accessing government source of support.
To do so would
be to distinguish and create various categories of children, for
example, children who have grandparents will be
treated differently
from those who do not. Nowhere in any of the aforegoing provisions
with particular reference to s 150(1)
of Act 38 of 2005 is any such
distinction made. Unfortunately, the literal interpretation of the
Stemele
decision may result in untold hardships for children who end up being
classified into groups of those who have caregivers who have
a legal
duty of support and those who do not. Such constitutes unjustified
discrimination which is contrary to section 7 of the
Bill of Rights.
This is surely not in keeping with the spirit of Ubuntu and it will
certainly not be in the best interest of children
if this distinction
is to persist. All orphaned children are to be treated equally
before the law.
[25] Counsel
for the respondents further submitted that the inquiry relating to
caregivers who owe a duty of support as opposed
to those who do not
should be dealt with in the second stage of the inquiry in the
determination of the question of “
visible
means of support
”.
We agree.
[26] Section
156(1)(e) of the Children’s Act provides:
“
If the child has no
parent or care giver or has a parent or care giver 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;
(ii) …”
This section specifically provides for caregivers to become foster
care parents whether or not they owe the children a duty of
support.
Having regard to the aforegoing there can be no rational basis for
the distinction.
[27]
Therefore, the court
a
quo
in this case erred when it found that the
“children
in question have a caregiver Mrs M. She is able and suitable to care
for the children (This is common cause). For
this reason it is clear
that a foster care order cannot be granted in terms of section 156(1)
(e)
8
.”
[28] If the
finding in the
Stemele
matter is to be followed then the appellant will be excluded, which
will not be in the best interests of the children. When interpreting

s 150(1)(a) of the Children’s Act no discrimination should be
made between those caregivers who owe the children a duty of
support
and those who do not. This interpretation would be in the best
interests of the children and the children will be afforded
equal
protection before the law. The approach we take in the matter will
avoid patterns of discrimination and disadvantage.
[29] It is common cause that the minor children are orphaned. In
this case the appellant, the grandmother has applied for the
minor
children to be placed in her foster care. They have been living for
some time with their grandmother. Their biological father
is unknown.
Having regard to the aforegoing and in the best interests of the
children this court finds that they are in need of
care and
protection.
Visible means of support inquiry
[30] Turning to the second stage of the inquiry which involves a
determination into whether or not the minor children are “without

visible means of support”. There are two steps to this inquiry.
The first step is for the Commissioner of the Children’s
Court
to enquire whether or not the children have the means to support
themselves. If not, the Children’s Court must enquire
whether
the children have an enforceable claim for support. At this stage the
focus should be on whether or not the children have
the necessary
financial resources, for example, they may have received an
inheritance or an insurance policy. At this stage of
the inquiry the
Commissioner of the Children’s court must not investigate the
financial position of the caregiver, but rather
that of the minor
children.
[31] In
Stemele
supra
the
court held that the Legislature intended the inquiry to focus on the
financial means of the child. The court further held that
neither the
Children’s Act nor the
Social Assistance Act nor the
relevant
regulations require an examination of the foster care giver’s
income. We agree
9
with these conclusions.
[32] If the Commissioner of the Children’s Court finds that the
children do not have the financial means to support themselves
the
question that arises is: are the children in a position to enforce
their claim against those who owe them a legal duty of support.

Counsel for the respondents submitted if the persons against whom
this legal duty of support is enforceable are not in a financial

position to support the children, then the caregivers should be able
to apply for a foster care grant. The fact that a duty of
support
exists, does not mean that the matter ends there; a further inquiry
into whether the caregiver has the financial means
to support the
children must be done. On the facts of this case according to the
social worker’s report the appellant receives
R2 470.00 per
month. Her expenses amount to R2 850.00. There is a clear deficit.
Having regard to the aforegoing the appellant
does not have the
financial means to support the children. In our view the appellant
should be able to apply for a foster care
grant.
[33] In the result the following order is made:
The appeal is upheld.
The finding of the Commissioner of the Children’s Court is
substituted with the following order:
“
The minor children are
found to be in need of care and protection and are to be placed in
foster care in terms
section 186(2)
of the Children’s Act 38 of
2005 with their grandmother Ms NCM (“the foster care parent”)
and a foster care grant
in relation to the three minor children is to
be paid to the foster care parent.”
33.3 This order is antedated to 26 April 2011.
_____________________________
Z CARELSE
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
I agree:
_____________________________
R MATHOPO
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
Appearances:
For the Appellant : Mr Motaung
For the Respondent : Mr Mokhari SC and Ms Ali
1
ad par 29
2
s 8
of the
Social Assistance Act 13 of 2004
3
S 39(2) of the Constitution Act 108 of 1996
4
Stemele supra page 14 par [27]
5
ad par 29
6
Stemele supra
ad par [29]
7
Par[16]
supra
8
Magistrate’s findings page 9
9
Stemele supra ad par [31]