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[2015] ZASCA 155
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Centre for Child Law v The Governing Body of Hoerskool Fochville (156/2015) [2015] ZASCA 155; [2015] 4 All SA 571 (SCA); 2016 (2) SA 121 (SCA) (8 October 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 156/2015
DATE:
O8 OCTOBER 2015
Reportable
In
the matter between:
CENTRE
FOR CHILD
LAW
............................................................................................
APPELLANT
And
THE
GOVERNING BODY OF HOËRSKOOL FOCHVILLE
.....................
FIRST
RESPONDENT
HOËRSKOOL
FOCHVILLE
......................................................................
SECOND
RESPONDENT
Neutral
citation:
Centre for Child Law v The
Governing Body of Hoërskool Fochville
(156/2015)
[2015] ZASCA 155
(8 October 2015)
Bench:
Ponnan, Theron, Majiedt and Mbha JJA and
Gorven AJA
Heard:
28 September 2015
Delivered:
8 October 2015
Summary
:
Appeal – mootness – discrete point of interpretation –
production of documents – Uniform rule 30A applicable
when rule
35(12) not complied with – court must try to strike a proper
balance in the exercise of its general discretion
– interests
of children must be accorded adequate weight.
ORDER
On
appeal from
:
Gauteng
Local Division of the High Court, Johannesburg (Sutherland J, sitting
as court of first instance): reported
sub
nom Governing Body, Hoërskool Fochville & others v Centre
for Child Law
2014 (6) SA 561
(GJ).
The
appeal succeeds and the order of the court below is set aside and
replaced with:
‘
The
application is dismissed’.
JUDGMENT
Ponnan
JA (Theron, Majiedt and Mbha JJA and Gorven AJA concurring):
[1]
On 1 December 2011 the respondents in the present appeal, the
Governing Body of Hoërskool Fochville, as the first applicant,
and Hoërskool Fochville, as the second (collectively referred to
as the School) approached the Gauteng Local Division of the
High
Court, Johannesburg for relief in two parts. Under Part A, an urgent
interim order was sought interdicting, what for convenience
may be
described as the relevant authorities,
[1]
from
admitting or directing the principal of the School to admit any
additional learners (the additional learners) for the 2012
academic
year. Under Part B, an order was sought, inter alia, reviewing and
setting aside the admission, by or at the instance
of the relevant
authorities, of any additional learners in circumstances where such
admission would result in the total number
of learners admitted
exceeding the capacity of the School as determined in its admission
policy. Although no relief was sought
against them, each of the
parents or guardians of the additional learners were cited as the
further respondents ‘by virtue
of an interest that they or
their minor children whom they represent, might have in the outcome
of the application’.
[2]
In support of that application (the main application) it was stated
on behalf of the School that the relevant authorities had
directed
the principal to admit the additional learners to the School for the
2012 academic year, notwithstanding the fact that
it had already
reached its capacity for that year. As a result, so it was asserted,
the admission of the additional learners would
result in severe
overcrowding and materially prejudice all of the learners at the
School, including the additional learners. The
relevant authorities
contended, notwithstanding the School’s protest to the
contrary, that the School had the capacity to
accommodate the
additional learners.
[3]
The urgent application failed and in January 2012 the additional
learners were duly enrolled as the first Grade 8 English language
medium class at the School, which since its inception had been an
Afrikaans medium school. On 14 December 2012 the relevant authorities
launched a counter-application seeking to change the School’s
language policy from Afrikaans medium to dual medium. On 19
December
2012 the present appellant, the Centre for Chid Law (CCL),
[2]
applied
for leave to intervene as the third applicant in the main application
(the intervention application). In support of the
intervention
application, Ms Carina Du Toit, an attorney at the CCL, stated:
‘
26.
In order to establish the interests of the children in this matter we
drove to Kokosi township on 3 November 2012 to meet with
the
children.
27.
The initial introduction of our team to the children took place in
the presence of some of their parents, who supported the
idea of the
children being separately represented in the matter. The children
were enthusiastic about the idea of being given a
chance to have
their own views and wishes heard by the court. The children’s
parents were not present during the interviews.
28.
We divided the children into groups of approximately six to eight
learners. Each child was asked to complete a questionnaire.
They were
permitted to complete the questionnaire without affixing their names
to it. The questionnaire listed specific questions
but the children
could also write additional comments.’
[4]
On 25 January 2013 the School gave notice of its intention to oppose
the CCL’s intervention application. But, before filing
an
answering affidavit, on 1 February 2013 it first served a notice in
terms of Uniform rule 35(12) requiring the CCL to produce
for
inspection, inter alia, ‘all questionnaires completed by the
learners’ as referred to in paragraph 28 of Ms Du
Toit’s
affidavit. On 15 February 2013 the CCL replied to the School’s
rule 35(12) notice that it refused to:
‘
produce
or make available for inspection the questionnaires completed by the
learners on the basis that these documents are privileged
as they
amount to statements and/or communication between Attorney and Client
and between Attorney and Advocate. In addition an
undertaking was
made to the learners that these documents will remain confidential.’
[5]
On 25 April 2013 the School applied to the court a quo for an order:
‘
1.
Compelling the [CCL] to comply with the applicants’ rule 35(12)
notice dated 1 February 2013, within five days of this
order;
2.
Ordering the [CCL] to deliver true copies of the questionnaires to
which it refers in paragraph 28 of its founding affidavit
in its
application to intervene, to the applicants’ attorney within
five days of this order;
3.
Ordering the [CCL] to pay the applicants’ costs of this
application’.
[6]
In support of that application (the application to compel) Mr
Erasmus, the School’s attorney, stated:
‘
4.
[T]he Centre for Child Law – seeks leave to intervene as a
third party in its own right, to represent the interests of
the
learners who are already before the court as the fifth to fifty third
respondents. The [CCL] also purports to represent the
interests of an
unspecific class of other minors who are not already parties to this
litigation.
5.
In support of its application to intervene, the [CCL] has delivered a
55 page affidavit (excluding annexures), 21 pages of which
summarise
alleged statements of the learners attacking the School, for
discriminating against them in various ways, including racially.
The
[CCL] expressly alleges that these summaries are based on
questionnaires completed by the learners, but refuses to produce
them, despite delivery of a rule 35(12) notice. The [CCL] claims
privilege.
6.
The purpose of the application is to compel the [CCL] to produce the
questionnaires completed by learners referred to in paragraph
28 in
the application to intervene.
7.
The applicants are not in a position to answer fairly and
meaningfully to the [CCL]’s affidavit, without production of
the questionnaires which are at the heart of the [CCL]’s
application to intervene.
8.
This situation creates a difficulty for the applicants, since the
applicants dispute not only the [CCL]’s right to intervene,
but
also that it has the legal personality required to be a party to
litigation (as opposed to an amicus curiae). This defence
will be
raised in answering affidavit, which cannot, however, be settled
before these questionnaires are produced. The applicants’
citation of the [CCL], as the respondent in this interlocutory
application, is not intended to and should not be construed as a
waiver of the applicant’s right to contest the [CCL]’s
legal personality and
locus
standi
in
the intervention applications.’
[7]
In opposing the application to compel, Ms Du Toit, on behalf of the
CCL, stated:
‘
10.
The CCL acts on behalf of the children as a group instead of citing
each individual child for the following reasons:
10.1
There are 37 children actively involved in the litigation who wanted
to express their views and participate in the litigation.
This means
that there are nuanced and varied views from each of the children. If
CCL or the Legal Resources Centre (“LRC”)
simply
represented the children as their attorneys, each child would have to
be cited in their individual capacity and depose to
his or her own
affidavit.
10.2
By allowing them to fill-in the questionnaires individually and
consulting with them in small groups we could collate the children’s
views and experiences in one affidavit. This would allow the court to
get a full range of views without having to read through
thirty seven
affidavits.
10.3
Most fundamentally, this approach is more protective of the children.
The children described victimisation within the school,
especially by
other children, and it was our professional opinion that if the
children were cited individually and deposed to their
own affidavits
they would be placed in a vulnerable position. We therefore decided
to act on behalf of, and in the interests of,
the children as CCL in
order to put their views before the court and to protect their best
interests.
.
. .
13.1
At the outset I should point out that the affidavit is not based only
on the information contained in the questionnaires. The
questionnaires were merely one tool to facilitate the process of
consultation. An employee of either the LRC or the CCL sat with
each
group of children in order to conduct the consultation. In addition,
I personally consulted with each group of children on
more than one
occasion and asked questions not contained in the questionnaire. I
also obtained further explanations of answers
provided to the
questionnaire. During these discussions the children were encouraged
to express themselves fully and freely on
the express understanding
that the questionnaires themselves would not be provided to the
applicants and that certain information
disclosed by the children
would be confidential, if they so requested.
13.2
In this regard, the questionnaires are no different in substance to
correspondence directed to adult clients, which may be
one method of
taking instructions from adult clients, in addition to consultations
in person.
.
. .
13.4
Furthermore, the children do not seek any relief in respect of the
incidents of racism or bullying they have experienced. The
applicants
are therefore not called on to answer each and every allegation and
do not need to know the exact details of incidents
of abuse
experienced by the children. In addition, by excluding the limited
information that would identify individual victims
or perpetrators in
respect of these incidents of racism and bullying, the CCL has
avoided the threat of harm to individual reputation
and relationships
that may require specific, detailed responses to the allegations.
.
. .
20.
It is denied that the applicants are not in a position to answer
fairly and meaningfully to the CCL’s founding affidavit.
The
applicants are not called upon to answer each and every allegation
made by the children, nor is it necessary for a determination
of the
issues in the main matter. In any event, all of the information
obtained through the questionnaires, save for information
that may
lead to the identification of the children or is confidential by
agreement with the children, is enclosed in annexure
“CDT 2”
of the CCL’s affidavit. The applicants will not be placed in a
better position to answer the allegations
should they be given access
to the questionnaires. This is also because the purpose of the
consultations with the children was
not to discuss specific incidents
but to record the children’s experiences in an perspectives of
Hoërskool Fochville.
We did not explore in any detail the facts
surrounding specific incidents and they are therefore not contained
in the questionnaires.
.
. .
25.
The applicants quite simply fail to understand the legal
representation of children separate from their parents and as a
group.
The CCL acts on behalf of the minor children involved and in
the public interest. We do so for the reasons advanced above and in
our founding affidavit in the application to intervene.
.
. .
27.
CCL acts as a vehicle for the children to participate and be legally
represented in the matter. The children are represented
by the LRC as
their attorneys through the CCL who is assisting them in bringing
this litigation and act on their behalf’.
[8]
The application to compel came before Sutherland J, who, on 19
November 2013, ordered the CCL to:
(a)
comply with the school’s rule 35(12) notice by delivering up
for inspection and copying the original questionnaires; and
(b)
pay the costs of the proceedings including those of two counsel.
On
24 July 2014, Sutherland J granted leave to the CCL to appeal to this
court against his judgment. By then, however, a settlement
agreement
had been concluded between the parties to the litigation in the main
application. In terms of the settlement agreement
dated 23 July 2014
and to which the CCL was a party, the relevant authorities had
undertaken by the beginning of the 2015 academic
year to construct a
new English medium secondary school in Fochville. It was also agreed
that, save for one learner, all of the
additional learners will be
allowed to complete their education at the School.
[9]
In granting leave to the CCL to appeal to this court the learned
judge recognised that in the light of the settlement agreement,
‘the
rule 35(12) application by the School against CLL . . . has
become moot as it cannot be enforced and is now utterly
irrelevant’.
Accordingly, so stated the learned judge, ‘the provisions of
section 16(2)
(a)
of
the Superior Courts Act 10 of 2013 (the successor provisions to
section 21A of the Supreme Court Act 59 of 1959) applies’.
Sutherland J was nonetheless persuaded that there was a ‘live
issue’ that went beyond the strictures of this case that
justified the grant of leave to appeal.
[10]
In the light of the competing contentions of the parties we were
required to consider at the hearing of the matter whether
the appeal
should be entertained at all. To that end counsel were requested to
present argument as to whether it was not appropriate
to deal with
the matter in terms of
s
16(2)
(a)
(i)
of the Superior Courts Act 10 of 2013 (the Act), according to which
this court may dismiss an appeal where ‘the
issues
are of such a nature that the decision sought will have no practical
effect or result’.
It is trite that courts should and ought not to decide issues purely
for academic interest (
Radio
Pretoria v Chairman, Independent Communications Authority of
South
Africa & another
2005
(1) SA 47
(SCA)). Of its predecessor, s 21A of the Supreme
Court Act 59 of 1959,
[3]
this court stated in
Coin
Security Group (Pty) Ltd v SA National Union for Security Officers &
others
[2000] ZASCA 137
;
2001
(2) SA 872
(SCA) para 7:
‘
The
purpose and effect of s 21A has been explained in the judgment of
Olivier JA in the case of
Premier,
Provinsie Mpumalanga, en
'n Ander v Groblersdalse Stadsraad
1998 (2) SA 1136
(SCA). As is
there stated the section is a reformulation of principles previously
adopted in our Courts in relation to appeals
involving what were
called abstract, academic or hypothetical questions. The principle is
one of long standing.’
[11]
This court has a discretion in that regard and there are a number of
cases where, notwithstanding the mootness of the issue
as between the
parties to the litigation, it has dealt with the merits of an appeal
(see, inter alia,
Natal
Rugby Union v Gould
[1998] ZASCA 62
;
1999 (1) SA 432
(SCA) ([1998]
4 All SA 258)
;
The
Merak S: Sea Melody Enterprises SA v Bulktrans (Europe) Corporation
2002 (4) SA 273
(SCA);
Land
en Landbouontwikkelingsbank van Suid-Afrika v Conradie
2005 (4) SA 506
(SCA) ([2005]
4 All SA 509)
; and
Executive
Officer
,
Financial
Services Board v Dynamic Wealth Ltd
2012
(1) SA 453
(SCA)). With those cases must be contrasted a number where
the court has refused to enter into the merits of the appeal.
[4]
The broad distinction between the two classes is that in the former a
discrete legal issue of public importance arose that would
affect
matters in the future and on which the adjudication of this court was
required, whilst in the latter no such issue arose
(see
Qoboshiyane
NO & others v Avusa Publishing Eastern Cape (Pty) Ltd &
others
2013
(3) SA 315
(SCA) para 5).
[12]
The facts in
Gould
were: An election for the office of president of the appellant rugby
union was held at its annual general meeting. A review application
to
the High Court alleging that the election was invalidated by
procedural irregularities succeeded. But before the appeal to this
court against that decision was heard the rugby union convened a
special general meeting to hold fresh presidential elections at
which
a president was duly elected. In explaining why it was nonetheless
appropriate for the appeal to be entertained by this court,
Howie JA
stated (at 444I–445B):
‘
Had
there been no appeal the judgment of the court below would in all
probability have continued to influence the procedure adopted
in
respect of office bearer elections at future union meetings. There
was, of course, nothing irregular or unfair in the procedures
adopted
at the re-election meeting, viewed purely in isolation, without
regard to the constitution. But the union does have this
constitution. It is the chosen instrument by which the union’s
affairs are to be regulated and the union, its office bearers
and
council members are entitled to have it interpreted in order to guide
them for the future. In the circumstances I consider
that
determination of the appeal will, quite apart from the issue of costs
in the court below, have a “practical effect or
result”
within the meaning of s 21A of the Supreme Court Act.’
[13]
Both
The Merak S: Sea Melody Enterprises
SA v Bulktrans (Europe) Corporation
and
Land en Landbouontwikkelingsbank van
Suid-Afrika v Conradie
were concerned
with questions of law. In the former, Farlam JA took the view that in
the light of the importance of the questions
of law which arise in
the matter and the frequency with which they arise, it was an
appropriate matter for the exercise of this
court’s discretion
to allow the appeal to proceed. In the latter, Mpati DP observed
‘[w]here, for example, questions
of law, which are likely to
arise frequently, are at issue a court of appeal may hear the merits
of the appeal and pronounce upon
it’.
Executive
Officer
,
Financial
Services Board v Dynamic Wealth
concerned
‘the proper construction of an important provision in the
regulatory armoury of the registrar, the test to be applied
in
considering an application for curatorship under s 5(1) of the
[Financial Institutions (Protection of Funds) Act 28 of 2001]
and a
consideration of the evidential status of an inspection report’.
Wallis JA stated that these ‘are all important
issues that will
impact upon the future conduct of the registrar’ and thus could
not agree that the appeal did not have any
practical effect or
result.
[14]
The High Court considered that it was engaged in the
proper
interpretation of rule 35(12). On that score, it
has spoken
and absent an appeal its judgment will in all probability continue to
influence how litigants approach such an enquiry.
If the High Court
erred in its approach, as it appears that it indeed has, then future
litigants are entitled to the benefit of
this court’s view on
the issue.
I thus consider that the determination
of the appeal will have a ‘practical effect or result’
within the meaning of
that expression, inasmuch as a discrete legal
issue of public importance arises that would affect matters in the
future and on
which the adjudication of this court is required.
[15]
Uniform rule 35(12) states:
‘
Any
party to any proceeding may at any time before the hearing thereof
deliver a notice as near as may be in accordance with Form
15 in the
First Schedule to any other party in whose pleadings or affidavits
reference is made to any document or tape recording
to produce such
document or tape recording for his inspection and to permit him to
make a copy or transcription thereof. Any party
failing to comply
with such notice shall not, save with the leave of the court, use
such document or tape recording in such proceeding
provided that any
other party may use such document or tape recording.’
As
Botha J pointed out in
Moulded
Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis
1979
(2) SA 457
(W) at 459G, the self-contained sanction in rule 35(12) is
of a ‘negative nature, being to the effect that a party failing
to comply with the notice shall not, save with the leave of the
court, use the document in question, provided that any other party
may use such document’. That sanction is one that comes into
effect automatically upon non-compliance with the provisions
of the
rule. But, a party who gives notice under rule 35(12) may not be
content with just the negative sanction provided by the
rule. In that
event it is to rule 30A that such party must turn.
[16]
Uniform rule 30A reads:
‘
(1)
Where a party fails to comply with these rules or with a request made
or notice given pursuant thereto, any other party may
notify the
defaulting party that he or she intends, after the lapse of 10 days,
to apply for an order that such rule, notice or
request be complied
with or that the claim or defence be struck out.
(2)
Failing compliance within 10 days, application may on notice be made
to the court and the court may make such order thereon
as to it seems
meet.’
Under
rule 30A a party making a request, or giving a notice, to which there
is no response by the other party, may through a further
notice to
the other party warn that after the lapse of ten days application
will be made for an order that the notice or request
be complied
with, or that the claim or defence be struck out, as the case may be.
Failing compliance within the ten days mentioned,
application may
then be made to court and the court may make an appropriate order.
That, as Botha J described it in
Coucourakis
(at 459H), is a ‘positive form of relief’.
[17]
In general terms, the rules exist to regulate the practice and
procedure of the courts. Their object is to secure the ‘inexpensive
and expeditious completion of litigation before the courts and they
are not an end in and of themselves.
[5]
Ordinarily,
strong grounds would have to be advanced to persuade a court to act
outside the powers provided for specifically in
the rules. Here,
having given notice in terms of rule 35(12) that has not been
complied with, it was for the School to give notice
in terms of rule
30A that it intended, after the lapse of ten days, applying for an
order that its rule 35(12) notice be complied
with. That, the School
did not do. Nor did it apply to court in terms of rule 30A to compel
production of the documents sought.
That, in and of itself, may have
been fatal to the application (see
Universal
City Studios v Movie Time
1983
(4) SA 736 (D)).
[6]
In
Universal
City Studios
,
Booysen J was urged, despite the fact that the procedure laid down in
rule 30(5) (the predecessor to rule 30A) had not been followed,
to
nevertheless order compliance with the rule 35(12) notice. He
declined, stating that ‘a party who deliberately chooses
not to
claim relief of a particular nature, should in general, even if it
were competent, not be granted such relief under the
general prayer
of alternative relief’. Whether Booysen J was correct in his
approach to the matter hardly need detain us.
For,
the real complaint in this case is that however the application was
presented, the learned judge in the court a quo failed
to appreciate
that he was, in truth, considering an application in terms of rule
30A. In compelling production of the questionnaires,
Sutherland J
‘sum[med] up the law’ thus:
‘
25.1.
There is clear authority that confidentiality does not trump the
rule.
25.2.
There is some authority for the proposition that rule 35(12) must be
literally interpreted, and irrelevant and privileged
documents must
be disclosed. I am in firm disagreement with such a view.
25.3.
There is some authority, which is nevertheless obiter, to support the
idea that an irrelevant or privileged document, if referred
to in a
pleading or affidavit, cannot be subjected to compulsory disclosure
in terms of rule 35(12). I am in firm agreement with
this view.
25.4.
Therefore, I hold that, upon a proper interpretation of rule 35(12),
a party called upon to comply with rule 35(12) is excused
from so
doing, if that party shows that the document sought is irrelevant to
the issues in the matter, or is privileged, but cannot
refuse on the
grounds of confidentiality.’
[18]
Universal City Studios
held (at 748A) that:
‘
[this]
being an application, I would say that the
onus
is to be discharged on the usual basis, ie that the applicant bears
the overall
onus
of satisfying the Court that the respondent is obliged to produce the
document . . . . Where the respondent files an opposing affidavit
. .
. and either denies relevance or avers that he is on ground of
privilege not obliged to produce a document . . . the applicant
would, in order to succeed, have to satisfy the Court on a balance of
probabilities that the document is indeed relevant or not
privileged.’
In
Gorfinkel v Gross, Hendler & Frank
1987 (3) SA 766
(C),
Friedman J disagreed with this dictum. He took the view that the rule
should be interpreted as follows:
‘
[P]rima
facie
there is an obligation on a party
who refers to a document . . . to produce it. That obligation is,
however, subject to certain
limitations, for example, if the document
is not in his possession and he cannot produce it, the Court will not
compel him to do
so. . . . Similarly, a privileged document will not
be subject to production. A document which is irrelevant will also
not be subject
to production. As it would not necessarily be within
the knowledge of the person serving the notice whether the document
falls
within the limitations I have mentioned, the
onus
would be on the recipient of the notice
to set up facts relieving him of the obligation to produce the
document’.
Friedman
J’s approach found favour with Thring J in
Unilever
plc v Polagric (Pty) Ltd
2001
(2) SA 329
(C).
For
my part, I entertain serious reservations as to whether an
application such as this should be approached on the basis of an
onus
.
Approaching the matter on the basis of an
onus
may well be to misconceive the nature of the enquiry. I thus deem it
unnecessary to attempt to resolve the disharmony on the point.
That
notwithstanding, it is important to point out that the term
onus
is not to be confused with the burden to adduce evidence (for example
that a document is privileged or irrelevant or does not exist).
[7]
In
my view, the court has a general discretion in terms of which it is
required to try to strike a balance between the conflicting
interests
of the parties to the case. Implicit in that is that it should not
fetter its own discretion in any manner and particularly
not by
adopting a predisposition either in favour of or against granting
production. And, in the exercise of that discretion, it
is obvious, I
think, that a court will not make an order against a party to produce
a document that cannot be produced or is privileged
or irrelevant.
[19]
In striking the appropriate balance in a case of this nature adequate
weight must be accorded to the interests of the children.
In that
regard, a useful starting point is an appreciation that the right of
children to representation separate from their parents,
flows from
their right to participate in all matters that affect them. That is a
right which is widely recognised in international
law and forms part
of South African law. Article 12 of the United Nations Convention on
the Rights of the Child, 1989 (UNCRC)
[8]
entrenches
the child’s right to participate. It provides:
‘
1.
States Parties shall assure to the child who is capable of forming
his or her own views the right to express those views freely
in all
matters affecting the child, the views of the child being given due
weight in accordance with the age and maturity of the
child.
2.
For this purpose, the child shall in particular be provided the
opportunity to be heard in any judicial and administrative
proceedings
affecting the child, either directly, or through a
representative or an appropriate body, in a manner consistent with
the procedural
rules of national law.’
Closer
to home, in terms of the African Charter on the Rights and Welfare of
the Child, 1990 (ACRWC)
[9]
the
following obligation is placed on the States in Article 4(2):
‘
In
all judicial or administrative proceedings affecting a child who is
capable of communicating his [or] her own views, an opportunity
shall
be provided for the views of the child to be heard either directly or
through an impartial representative as a party to the
proceedings and
those views shall be taken into consideration by the relevant
authority in accordance with the provisions of appropriate
law.’
[20]
The child’s right to have separate legal representation during
legal proceedings in a matter such as this is thus clearly
contemplated by those provisions. Both specifically envisage that the
child may participate ‘through a representative’.
The
ACRWC goes further than the UNCRC in stating that the child may
participate through an ‘impartial representative as a
party to
the proceedings’. The child’s right to be heard and to
have his or her views taken into account, in terms
of the UNCRC and
ACRWC, has been recognised as forming part of South African law.
[10]
The
importance of the child’s participation was emphasised in
Christian
Education South Africa v Minister of Education
[2000] ZACC 11
;
2000 (4) SA 757
(CC) para 53. The Constitutional Court there held:
‘
There
is a further observation to be made. We have not had the assistance
of a
curator ad litem
to represent the interests of the children. It was accepted in the
High Court that it was not necessary to appoint such a curator
because the State would represent the interests of the child. This
was unfortunate. The children concerned were from a highly
conscientised community and many would have been in their late teens
and capable of articulate expression. Although both the State
and the
parents were in a position to speak on their behalf, neither was able
to speak in their name. A curator could have made
sensitive enquiries
so as to enable their voice or voices to be heard. Their actual
experiences and opinions would not necessarily
have been decisive,
but they would have enriched the dialogue, and the factual and
experiential foundations for the balancing exercise
in this difficult
matter would have been more secure.’
[21]
In
MEC for Education, KwaZulu-Natal & others v Pillay
[2007] ZACC 21
;
2008
(1) SA 474
(CC) para 56, Langa CJ pointed out:
‘
Legal
matters involving children often exclude the children and the matter
is left to adults to argue and decide on their behalf.
In
Christian
Education South Africa v Minister of Education
this court held in the context of a case concerning children that
their “actual experiences and opinions would not necessarily
have been decisive, but they would have enriched the dialogue, and
the factual and experiential foundations for the balancing exercise
in this difficult matter would have been more secure.” That is
true for this case as well. The need for the child’s
voice to
be heard is perhaps even more acute when it concerns children of
Sunali’s age who should be increasingly taking
responsibility
for their own actions and beliefs.’ (Footnotes omitted.)
Children
have always received assistance through the common law. Herbstein and
Van Winsen state that a child must be assisted by
a guardian to
institute legal proceedings.
[11]
Legal proceedings instituted by a child, without the assistance of a
guardian, may be ratified by that child’s guardian.
Furthermore, if a child wants to litigate and does not have
assistance from a guardian, a
curator
ad litem
must be appointed for the child. A child may litigate without
assistance if the High Court grants him or her
venia
agenda
.
[12]
[22]
The drafters of our Constitution
[13]
appeared
to recognise that there may well be circumstances where,
notwithstanding the common law protection, additional assistance
may
be required by children in specific instances. Accordingly, the right
of children to be legally represented in civil matters
was included
in the Constitution. Thus, s 28(1)
(h)
of the Constitution, guarantees State-funded legal representation, as
one incident of the right of children to participate in matters
affecting them. It 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’.
Section
28(1)
(h)
affords
every child a right to legal representation at State expense in
civil
proceedings
affecting a child if
substantial injustice would otherwise result. The right is triggered,
not only when the child is a party to
the proceedings, but whenever
he or she is affected by the litigation. The child is then entitled,
not merely to be heard, but
to be afforded the envisaged legal
representation at State expense.
[23]
The Children’s Act 38 of 2005 was drafted pursuant to South
Africa’s obligations in terms of the UNCRC, the ACRWC
and the
Constitution. Sections 10, 14 and 15 of the Children’s Act are
a cluster of provisions designed to ensure that children’s
rights are protected and their dignity is upheld in any proceedings
affecting them. Section 10 of the Children’s Act entitles
every
child to participate ‘in an appropriate way’ in any
matter ‘concerning the child’. It adds that the
‘views
expressed by the child must be given due consideration’.
[14]
Section
14 recognises the right of every child to have access to court for
the protection and enforcement of their rights. It further
entitles
every child ‘to be assisted in bringing a matter to a
court’.
[15]
Section
15 deals with the enforcement of fundamental rights and reinforces
the broad standing provisions of s 38 of the Constitution
specifically in relation to children.
[16]
It
would thus seem that the legislature intended to create wide and
generous mechanisms for the protection and enforcement of children’s
rights beyond that available to them at common law. The language of
ss 14 and 15 is clear and unequivocal. Section 14 emphatically
states
that every child has the right to bring a matter to court. It states
further that a child may be assisted in bringing the
matter to court.
It does not state who must assist and does not repeat the common law
requirement of being assisted by a guardian.
[24]
In terms of s 28(2) of the Constitution, in all matters concerning
children – including any litigation concerning them
[17]
–
their
best interests are of paramount importance.
[18]
Section
28(2) must be interpreted so as to promote the foundational values of
human dignity, equality and freedom.
[19]
The
reach of s 28(2) extends beyond those rights enumerated in s 28(1):
it creates a right that is independent of the other
rights
specified in s 28(1).
[20]
Section
28(2), read with s 28(1), establishes a set of rights that courts are
obliged to enforce.
[21]
In
S
v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2007
(2) SACR 539
(CC) para 15, the Constitutional Court observed that:
‘
The
ambit of the provisions is undoubtedly wide. The comprehensive and
emphatic language of s 28 indicates that just as law enforcement must
always be gender-sensitive, so must it always be child-sensitive;
that statutes must be interpreted and the common law developed
in a
manner which favours protecting and advancing the interests of
children; and that courts must function in a manner which at
all
times shows due respect for children's rights. As Sloth-Nielsen
pointed out:
“
(T)he
inclusion of a general standard (‘the best interest of a
child’) for the protection of children’s rights
in the
Constitution can become a benchmark for review of all proceedings in
which decisions are taken regarding children. Courts
and
administrative authorities will be constitutionally bound to give
consideration to the effect their decisions will have on
children’s
lives.”’
Thus
in
Director of Public Prosecutions, Transvaal v Minister of
Justice and Constitutional Development & others
2009 (4) SA
222
(CC) para 115, the Constitutional Court pointed out:
‘
In
S v F
, for
example, the court equated an enquiry into the desirability of
appointing an intermediary with a trial in which the State
bears the
burden of proof to establish the need for the appointment of an
intermediary on a balance of probabilities. I am unable
to agree
with this view. This approach to the enquiry overlooks the
objectives of the enquiry. The overriding consideration
at that
enquiry is to prevent the child from exposure to undue stress that
may arise from testifying in court. What is required
of the judicial
officer is to consider whether, on the evidence presented to him or
her, viewed in the light of the objectives
of the Constitution and
the subsection, it is in the best interests of the child that an
intermediary be appointed’.
[25]
Professor Trynie Boezaart notes that:
[22]
‘
There
are two ways in which children can be allowed, in the words of the
[UNCRC], to “express their views freely” in
matters that
affect them, namely by means of participation and representation.
“Participation” would refer to all the
rules that allow
the child to be heard directly, without an intermediary. It includes
rules that require children to be consulted
about their opinion, or
enable children to become parties to legal actions, so that they have
the right to participate in proceedings
and/or demand a certain
remedy. “Representation” is used to indicate the rules
that allow children to instruct attorneys,
to seek legal advice or to
have other kinds of adult representation in legal proceedings.’
(Footnotes omitted.)
Here
the CCL, in consultation with the children, elected to act in the
interests of a group of children (including other similarly
situated
children) and in the public interest for inter alia the following
reasons: The children expressed clear and strong views
and opinions
in respect of the case – independent of the views and opinions
of their parents and communicated some information
that they were
reluctant to share with their parents. They requested that their
experiences of being at Hoërskool Fochville
be placed before the
court. Those parents who met with the CCL supported the idea of the
children being separately represented
in the matter. At the time of
the intervention application by the CCL, the parents were not yet
separately represented –
they later secured separate legal
representation by SECTION27.
[23]
Allowing
them to complete the questionnaires individually and consulting with
them in small groups ensured that the children’s
views and
experiences were properly collated and articulated in one affidavit,
thus allowing the court to get a full range of views
without having
to read some 37 affidavits. This approach appears to be more
protective of the children. The children described
victimisation
within the school, especially by other children, and if cited
individually and deposed to their own affidavits, they
ran the
potential risk of being vulnerable to reprisals or further
victimisation. The 37 children directly affected expressed concern
about siblings and neighbours who may need to attend the School in
the future. The interests of children similarly placed as the
children currently affected therefore may also require safeguarding.
The CCL’s approach in this regard is consistent with
that
advocated by Professor Noel Zaal and Ann Skelton that
‘
It
is necessary to promote a children’s rights culture in . . .
court proceedings, and therefore the representative would
ideally
wish to be supporting the wishes and instructions of the child. The
child must, if possible, be convinced that the legal
representative
is his or her very own who will see that his or her views and hopes
gain priority at the hearing.’
[24]
[26]
Accordingly, as I have endeavoured to show, in every weighing of
rights and interests and any value judgment relating to whether
the
questionnaires should be produced, the best interests of the children
would have to be the paramount consideration. Thus even
if the
questionnaires were not protected by privilege or if the privilege
had been waived, it may not have been appropriate for
the court a quo
to have ordered their disclosure on the basis that it would not have
been in the children’s best interests
to do so. The CCL
explained why the children specifically requested that their
confidentiality be protected. The court a quo took
the view that the
CCL could not refuse to produce the questionnaires on the grounds of
confidentiality. But as Moseneke DCJ pointed
out in
Independent
Newspapers v Minister for Intelligence Services: In re Masetlha v
President of the Republic of South Africa & another
2008 (5)
SA 31
(CC) para 27:
‘
Even
before the advent of the Constitution, courts often, and correctly in
my view, recognised that when there is a claim of confidentiality
over information that is sought to be discovered or disclosed other
considerations of fairness arise. These are well recognised
by Schutz
AJ in
Crown
Cork & Seal Co Inc & another v Rheem South Africa (Pty) Ltd &
others (Crown Cork)
:
[25]
[A
conflict arises] between the need to protect a man’s property
from misuse by others, in this case the property being confidential
information, and the need to ensure that a litigant is entitled to
present his case without unfair halters. And, although the approach
of a Court will ordinarily be that there is a full right of
inspection and copying, I am of the view that our Courts have a
discretion
to impose appropriate limits when satisfied that there is
a real danger that if this is not done an unlawful appropriation of
property
will be made possible merely because there is litigation in
progress and because the litigants are entitled to see documents to
which they would not otherwise have lawful access. But it is to be
stressed that care must be taken not to place undue or unnecessary
limits on a litigant’s right to a fair trial, of which the
discovery procedures often form an important part.’
[26]
[27]
The concern expressed in this case is that the children may suffer
prejudice should they be identified as the makers of some
of the
statements in the questionnaires. At the very least, the children
appear to believe that they will. There is nothing to
suggest that
their perception in that regard is not genuinely held. In those
circumstances, there is much to be said for the argument
that
disclosure of the questionnaires would not be in their best
interests. That is not to suggest, to employ the language of
Sutherland J, that the best interest principle operates as a trump
because as the Constitutional Court pointed out in
S
v M
(Centre
for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2007
(2) SACR 539
(CC) 'the fact that the best interests of the child are
paramount does not mean that they are absolute’. It is thus but
a
starting point for any balancing of rights. Of course in
appropriate circumstances and as part of that balancing act a court
could
endeavour to impose suitable conditions relative to the
production and inspection.
[28]
Here the School has failed to show why their interests should
outweigh those of the children. On that score, in his replying
affidavit, Mr Erasmus stated:
‘
32.5
The intervening party’s statement that the applicants will not
be placed in a better position to answer the allegations
should they
be given access to the questionnaires, is denied. This is for the
applicants to decide after disclosure of the documents,
not for the
intervening party to decide in order to evade disclosure.’
Tellingly,
he does not inform the court why the School could not oppose the
intervention application without the benefit of the
questionnaires.
Ms Du Toit’s affidavit captures the lived experiences of the
children. It bears noting that no relief was
sought against the
School in respect of the incidents complained of. The School thus did
not require to know the precise details
of each incident in order to
respond to CCL’s application to intervene. In the event,
there was no justifiable basis
for holding that the interests of the
School in investigating the identities of the children in order to
answer the allegations
outweighed the interests of the children in
not having their identities disclosed, especially in the light of the
fact that the
children had disclosed the information (which they
otherwise may not have done) on condition of, and in the expectation
of, their
identities not being disclosed.
[29]
It seems clear that the litigation concerns the children. It also
seems clear that the children wish to participate in it at
least to
the extent that their views and perceptions of the school are
considered. The question is whether the use of a summary
of their
sentiments in an overarching affidavit by Ms Du Toit, without
supporting affidavits by them and disclosure of their individual
questionnaires, is an appropriate way for them to do so. The school
could point to no prejudice to it. It further cannot be said
that, if
the CCL is joined in the application, this is not an appropriate way
for the children to participate in the litigation.
The
court below held that the hearsay nature of the evidence adduced by
the CCL required the disclosure of the questionnaires. The
CCL
adduced the evidence in hearsay form so as to protect the identities
of the children, conscious that the admissibility and
weight of the
evidence would be considered in due course on the basis that it is
hearsay evidence. The questions of admissibility
and weight of the
evidence were thus not issues to be determined in this application.
The School obviously retained the right to
oppose the admission of
the hearsay evidence and to argue that it should be accorded little
weight, if admitted. But those are
matters that would obviously have
had to be canvassed and ultimately decided in either the intervention
or main application in
due course.
[30]
It follows, for the reasons given, that the Uniform rule 30A
application ought not to have succeeded before the court below.
Accordingly, the appeal must succeed. As to costs: CCL, commendably,
did not seek costs either in this court or the one below.
In the
result, the appeal succeeds and the order of the court below is set
aside and replaced with:
‘
The
application is dismissed’.
V
M Ponnan
Judge
of Appeal
APPEARANCES:
For
Appellant: W Trengove SC (with him J Brickhill)
Instructed
by: Legal Resources Centre, Grahamstown
Honey
Inc., Bloemfontein
For
Respondents: A Kemack SC (with him C Dreyer)
Instructed
by: Erasmus De Klerk Inc., Johannesburg
Webbers,
Bloemfontein
[1]
Cited
as the first to fourth respondents respectively, they were: the
Member of the Executive Council: Education, Gauteng Province;
the
Head of Department: Gauteng Department of Education; Mr Peter
Skosana, the District Director of the Gauteng Department of
Education; and Ms Judith N Dube, the Chief Education Specialist:
Institutional Development of the Gauteng Department of Education.
[2]
The
main objective of the CCL is to establish and promote child law and
to uphold the rights of children in South Africa in terms
of clause
3 of its Constitution.
[3]
Section
21A(1) of the Supreme Court Act 59 of 1959 provided:
‘
When
at the hearing of any civil appeal to the Appellate Division or any
Provincial or Local Division of the Supreme Court the
issues are of
such a nature that the judgment or order sought will have no
practical effect or result, the appeal may be dismissed
on this
ground alone.’
[4]
See
Radio
Pretoria v Chairman, Independent Communications Authority of South
Africa above
;
Rand
Water Board v Rotek Industries (Pty) Ltd
2003
(4) SA 58
(SCA);
Minister
of Trade and Industry v Klein NO
[2009]
4 All SA 328
(SCA);
Clear
Enterprises (Pty) Ltd v CSARS
[2011]
ZASCA 164
(SCA);
The
Kenmont School & another v DM & others
[2013]
ZASCA 79
(SCA); and
Ethekwini
Municipality v South African Municipal Workers Union & others
[2013]
ZASCA 135
(SCA);
Legal
Aid South Africa v Magidwana & others
[2014]
4 All SA 570
(SCA); and
Deutsches
Altersheim Zu Pretoria v Dohmen & others
[2015] ZASCA 3
(SCA).
[5]
See
Hudson
v Hudson
1927
AD 259
at 267;
Federated
Trust Ltd v Botha
1978
(3) SA 645
(A) at 654C-D. See also D E van Loggerenberg & P B J
Farlam
Erasmus:
Superior Court Practice
(2014) (Revision Service 45) at B1-4 – B1-6.
[6]
In
Universal
City Studios v Movie Time
1983
(4) SA 736
(D), Booysen J dismissed an application to compel
compliance with a notice in terms of rule 35(12) on basis that the
procedure
laid down in rule 35(5) (the predecessor to the current
rule 30A) had not been followed.
[7]
In
Coch
v Lichtenstein
1910 AD 178
, Innes JA stated that ‘the mere production of
evidence which makes the existence of . . . facts probable does not
in itself
shift the
onus
though it may go a long way towards satisfying it’; and in
Pillay
v Krishna
1946 AD 946
at 952 Davis AJA held:
‘
in
my opinion, the only correct use of the word
onus
is that which I believe to be its true
and original sense, namely the duty which is cast on a particular
litigant, in order to
be successful, of finally satisfying the
court, that he is entitled to succeed on his claim, or defence, as
the case may be,
and not in the sense merely of his duty to adduce
evidence to combat a
prima facie
case
made by his opponent.
’ See also
South Cape
Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd
1977 (3) SA 534
(A) at 548.
[8]
Adopted
and opened for signature, ratification and accession by General
Assembly resolution 44/25 of 20 November 1989, entered
into force 2
September 1990, in accordance with article 49. Signed by the
Republic of South Africa in 1993 and ratified on 16
June 1995.
[9]
Adopted
by the Organisation of African Unity in 1990 and entered into force
on 29 November 1999. OAU Doc. CAB/LEG/24.9/49 (1990).
Signed by the
Republic of South Africa on 10 October 1997, ratified on 7 January
2000 and deposited on 21 January 2000.
[10]
McCall
v McCall
1994 (3) SA 201
(C) at 204J-205G;
Lubbe
v Du Plessis
2001 (4) SA 57
(C) at 73F;
Soller
NO v G & another
2003 (5) SA 430
(W) para 8;
R
v H & another
2005 (6) SA 535
(C) 439 para 6.
[11]
Andries
C Cilliers, Cheryl Loots and Hendrik C Nel
Herbstein
and Van Winsen: The Civil Practice of the High Courts and the
Supreme Court of Appeal of South Africa
5 ed (2009) at 160-164.
[12]
Herbstein
& Van Winsen op cit note 11 at 160-164. See also
Ex
Parte Goldman
1960
(1) SA 89 (D).
[13]
The
Constitution of the Republic of South Africa, 1996.
[14]
Section
10 provides:
‘
Every
child that is of such an age, maturity and stage of development as
to be able to participate in any matter concerning that
child has
the right to participate in an appropriate way and views expressed
by the child must be given due consideration.’
[15]
Section
14 provides:
‘
Every
child has the right to bring, and to be assisted in bringing a
matter to a court, provided that matter falls within the
jurisdiction of that court.’
[16]
Section
15 provides:
‘
(1)
Anyone listed in this section has the right to approach a competent
court, alleging that a right in the Bill of Rights or
this Act has
been infringed or threatened, and the court may grant appropriate
relief, including a declaration of rights.
(2)
The persons who may approach a court, are:
(a)
A child who is affected by or involved
in the matter to be adjudicated;
(b)
Anyone acting in the interest of the
child or on behalf of another person who cannot act in their own
name;
(c)
Anyone acting as a member of, or in
the interest of, a group or class of persons; and
(d)
Anyone acting in the public interest.’
[17]
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development & others
2009
(2) SACR 130
(CC);
S
v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2007 (2) SACR 539
(CC) para 14-26.
[18]
International
law also affirms the ‘best interests’ principle and many
countries have subsequently incorporated it
into their constitutions
or child and family legislation. Article 3(1) of the UNCRC requires
that: ‘In all actions concerning
children, whether undertaken
by public or private social welfare institutions, courts of law,
administrative authorities or legislative
bodies, the best interests
of the child shall be a primary consideration.’ Similar
pronouncements are found in art 4(1)
of the ACRWC. See Neo Morei
‘Where for maintenance law as child support grants and
defaulters put it to the test’
(2014) 5
Mediterranean
Journal of Social Sciences
756 fn 6.
[19]
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development & others
2009
(4) SA 222
(CC) para 72.
[20]
DPP,
Transvaal v Minister of Justice and Constitutional Development &
others
(above) para 72.
[21]
S
v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2007
(2) SACR 539
(CC) para 14.
[22]
Trynie
Boezaart ‘General principles’ in C J Davel & A M
Skelton
Commentary
on the Children’s Act
(Revision Service 6, 2013) at 2-15.
[23]
SECTION27
is a public interest law centre having as its main objective to
influence, develop and use the law to protect, promote
and advance
human rights. Its name is drawn from s 27 of the Constitution which
enshrines everyone’s right to health care,
food, water and
social security. See the organisation’s website at
http://section27.org.za/
,
accessed on 7 October 2015.
[24]
Noel
Zaal & Ann Skelton ‘Providing effective representation for
children in a new constitutional era: Lawyers in the
criminal and
children's courts’ (1998) 14
SAJHR
539 at 554.
[25]
Crown
Cork & Seal Co Inc & another v Rheem South Africa (Pty) Ltd
& others (Crown Cork)
1980
(3) SA 1093 (W).
[26]
Id
at 1100A-C.