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[2018] ZAGPJHC 59
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NS and Others v Presiding Officer of the Children's Court (2184/18) [2018] ZAGPJHC 59 (6 February 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2184/18
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED.
In
the matter between:
N,
S
First
Applicant
N,
J
Second
Applicant
M,
M
Third
Applicant
and
PRESIDING
OFFICER OF THE CHILDREN’S COURT
JOHANNESBURG
Respondent
Summary
–
urgent application – review and setting
aside decision of the presiding officer of the children’s court
decision that
the children’s court has no jurisdiction to hear
this matter as minor child is Zimbabwean national. Decision set aside
–
s44 of Children’s Act 38 of 2005 would have
jurisdiction in matter if child concerned is ordinarily resident
within its jurisdiction
– this would include a child who is a
foreign national residing within its jurisdiction – irrelevant
for purposes of
establishing jurisdiction of children’s court
whether child is legally or illegally in the country.
JUDGMENT
KATHREE
– SETILOANE, J
[1]
This is an urgent application to review and set aside the decision of
the Presiding Officer of the Children’s Court: Johannesburg
(per F Ismail) declining to entertain an adoption application on the
basis that the Children’s Court has no jurisdiction
to do so,
because the minor child is a Zimbabwean national.
[2]
The first and second applicants are married to each other. The first
applicant wishes to adopt the third applicant, who is the
biological
son of the second applicant. The third applicant’s sister was
born on 20 March 1997. She is 20 years old. The
third applicant was
born on 8 March 2000. He is 17 years old. The applicants reside as a
family at […] V. Street, Albertsville,
Randburg.
[3]
In 1999, the third applicant’s biological father abandoned the
second applicant who was several months pregnant with the
third
applicant. Since their birth, the children have had no contact with
their biological father who has since passed on.
[4]
In 2001 the second applicant and her father came to South Africa to
seek a better life. Uncertain as to what South Africa might
hold for
her children, she left them in the care of her mother in Zimbabwe.
She, nevertheless, made frequent trips to Zimbabwe
to visit the
children.
[5]
In 2005, the first and second applicants met through mutual friends.
They fell in love and later that year the first applicant
asked the
second applicant to live with him at his home. Their relationship was
a strong and blissful one. They discussed marriage
and bringing the
children to South Africa to live with them.
[6]
In January 2008, the second applicant brought the children to South
Africa to live with them. The children were enrolled at
Greenside
Primary School where they completed their primary education.
[7]
The first applicant began to develop a very close bond with both
children and their relationship organically morphed, over time,
from
the second applicant’s partner to the children’s parent.
[8]
In 2009, the first applicant proposed marriage to the second
applicant and they married on 11 July 2009. In early 2012, they
began
discussing the possibility of the first applicant adopting the two
children. Since the first applicant fulfilled the role
of a father to
both children, he felt that by adopting them they would be reassured
of his commitment to them. The first and second
applicants discussed
adoption with the children and they consented. The first and second
applicants subsequently put the adoption
process into motion.
[9]
On approaching a social worker later that year, she advised them that
the adoption would cost them in the region of R10 000,00.
But
between paying school fees, living expenses and miscellaneous
expenses, the first and second applicants simply could
not
afford it. On the advice of the social worker they ultimately made a
down payment in 2015 and began saving up for the balance.
Unfortunately, by this stage, the second applicant’s daughter
had already turned 18 and was no longer eligible to be adopted
by the
first applicant.
[10]
Despite this setback, the first applicant decided to proceed with the
third applicant’s adoption. Having no biological
children of
his own, the first applicant felt it necessary to formalise his
relationship with the third applicant, who had over
the years become
incredibly close to him; looked to him as a father and called him
“Dad”.
[11]
The third applicant is a Zimbabwean national and is in South Africa
on a visitor’s visa. His visa, however, expired in
4 March
2017. The first and second applicants are afraid that the day may
come when the third applicant is refused a visitor’s
visa and
deported to Zimbabwe where he has no family and no home as his
grandparents have also relocated permanently to South Africa.
[12]
In order to avoid the trauma of a separation, the first and second
applicants started the adoption process. They obtained the
necessary
approvals from the relevant government departments in South Africa.
They also obtained the official documentation from
the Zimbabwean
Consulate. They submitted themselves to police clearance
checks, and medical tests. They then made application,
on 11
February 2017, to the Children’s Court for the third
applicant’s adoption. The adoption is recommended by the
Department of Social Development and Dr Marie Kruger, a social
worker, in terms of section 239 (1)(d) and 240 of the Children’s
Act 38 of 2005, respectively.
[13]
The application for his adoption was enrolled for hearing in the
Children’s Court for 17 October 2017. On that day, the
Presiding Officer removed the matter from the roll on the basis that
the Children’s Court had no jurisdiction to hear the
adoption
application because the:
‘
MINOR CHILD IS A ZIMBABWEAN
CITIZEN. CURRENTLY HE IS ON A VISITOR’S VISA IN THE COUNTRY.
THEREFORE COURT HAS NO JURISDICTION
TO HEAR THIS MATTER OF A FOREIGN
CHILD – VISA OF CHILD SEEMS TO HAVE FURTHER EXPIRED ON
04/03/2017…’
[14]
On 22 November 2017, the Centre for Child Law, which represented the
applicants in this application sought reasons from the
Presiding
Officer for her decision. She furnished reasons on 8 January 2017.
They read as follows:
‘
1. …
2. The minor child in question is a
Zimbabwean citizen. According to the passport copy and the birth
certificate provided, the
minor child was born on 8 March 2000.
3. The foreign minor child entered the
country on the 11
th
of February 2017 on a port of entry
visa which was valid until 4
th
March 2017. Such visa
expired on the 4
th
March 2017 and the minor child’s
status is that of illegal since the 5
th
March 2017.
4. In terms of the Immigration Act 13
of 2002 (as amended) the following definitions appear as follows:
“
foreigner”
– An individual who is not a citizen
; and
“
illegal
foreigner” – Foreigner in the Republic in contravention
of the Act.
5. Furthermore, in terms of Section 44
of the Children’s Act 38 of 2005 (as amended) it states:
“
The
Children’s Court that has jurisdiction in a particular matter
is
(a)
The court of the area in which the child involved in the matter
was ordinarily resident.”
The child in question according to the
papers filed cannot be ordinarily resident in the Republic of South
Africa as his visa expired.
...
6. Should the applicant be treated as
an inter-country adoption then the following in terms of Section 264
of the Children’s
Act 38 of 2005 (as amended) will apply:
Section 264 –
ADOPTION OF
CHILD FROM CONVENTION COUNTRY BY PERSON IN THE REPUBLIC
(1)
A person habitually resident in the Republic who wishes to adopt a
child habitually resident in a convention country must apply to
the
Central Authority:
(2)
If the Central Authority is satisfied that the Applicant is fit
and proper to adopt, it shall prepare a report on that person in
accordance with the requirements of the Hague Convention and Inter-
Country Adoption and any prescribed requirements and transmit
the
report to the central authority of the convention country concerned.
(3)
If an adoptable child is available for adoption, the central
authority of the convention country concerned shall prepare a report
on the child in accordance with the requirements of the Hague
Convention on Inter-Country Adoption and transmit it to the Central
Authority.
(4)
If the Central Authority and the central authority of the
convention country concerned both agree to the adoption, the central
authority
in that country will refer the application for adoption for
the necessary consent in that country.
In light of the above, particular
cognisance must be given to Section 264(4) in respect of the
applicant before court.
7. Chapter 2, Subsection 6(2)(a)
relating to General Principles of the Children’s Act
specifically states that:
“
All
proceedings, actions or decisions in a matter concerning a child
must
-
(a)
Respect, protect, promote and fulfil the child’s rights set
out in the Bill of Rights, the best interest of the child standard
set out in Section 7 and the rights and principles set out in this
Act,
subject to any lawful limitations (emphasis)
.
8. …
9. The Court is therefore of the view
that it has no jurisdiction and/or locus standi to hear the matter
and the matter was thus
removed from the roll.’
[15]
As correctly contended on behalf of the applicants, the decision of
the Presiding Officer is materially flawed and constitutes
a grave
misdirection as the Children’s Act does not exclude foreign
nationals (whether legally of illegally in the country)
from its
ambit. Nor does it exclude them from the jurisdiction of the
Children’s Court.
[16]
Section 44 of the Children’s Act entitled “Geographic
area of jurisdiction of the Children’s Court”
provides:
‘
(1) The children’s court
that has jurisdiction in a particular matter is –
(a)
The court of the area in which the child involved in the matter is
ordinarily resident; or
(b)
If more than one child is involved in the matter, the court of the
area in which any of those children is ordinarily resident.
(2) Where it is unclear which court
has jurisdiction in a particular matter, the children’s court
before which the child is
brought has jurisdiction in the matter.’
[17]
The Children’s Court would have jurisdiction in a matter
if the child concerned is “ordinarily resident”
within
its jurisdiction. The provisions of section 44 of the Children’s
Act relate solely to the territorial jurisdiction
of the Children’s
Court. Section 44 of the Children’s Act should not be construed
to exclude the legal jurisdiction
of the Children’s Court to
entertain a matter concerning a child who is a foreign national.
[18]
The determination of whether a child is ordinarily resident in the
area of the Children’s Court is a factual question.
The word
“resides” has been interpreted by our courts in the
context of establishing jurisdiction under the Children’s
Act
of 1937 and 1960 respectively, to mean “the place where the
child eats, drinks, or sleeps or where his family eats, sleeps
and
drinks”.
[1]
[19]
The words “resides” or “resident” connotes
something broader than “ordinarily resident”,
[2]
which on a proper construction would mean “something more
prolonged than a mere temporary stay”
[3]
.
It need not, however, be permanent. In the context of tax law, our
courts have interpreted “ordinarily resident”
to be
a person’s “home or one of his homes”,
[4]
and “the country to which he would naturally as a matter
of course return from his wanderings”.
[5]
[20]
Properly construed, the words “ordinarily resident” in
section 44 of the Children’s Act connotes, in more
contemporary
terms, the place or area where the child resides or his/her family
resides. In the event of uncertainty in relation
to where the child
concerned is ordinarily residing, then section 44(2) Children’s
Act confers jurisdiction on the court
before which the child is
brought.
[21]
There is no requirement in section 44 of the Children’s Act
that the child must be a South African citizen or a permanent
resident. A child’s immigration status is, therefore,
irrelevant to the question of whether the Children’s Court has
jurisdiction in a particular matter.
[22]
Lawrence Schäfer in his commentary on section 44 of the
Children’s Act writes:
[6]
‘
A broad reading of the
children’s court’s jurisdiction is necessary to give
effect to South Africa’s obligation
as a State Party to the
International Covenant on Civil and Political Rights (1966) and
Convention on the Rights of the Child (1989).
Article 2(1) of the
Covenant requires a State Party to ‘respect and to ensure to
all individuals within its territory and
subject to its jurisdiction’
the rights protected by the Covenant. Article 2 of the 1989
Convention is almost identical:
State Parties must ‘respect and
ensure the rights set forth in the present Convention to each child
within their jurisdiction’.
The latter article was interpreted
by the Belgian Court of Appeals as requiring the extension of
Belgium’s child protection
jurisdiction even to the ‘troubled’
child of a diplomat, notwithstanding the immunity that she otherwise
enjoyed under
the Vienna Convention on Diplomatic Relations (1961).
Although controversial, this decision should be commended to South
African
courts on account of the priority – comparable to that
enjoined in South African law by section 28(2) of the Bill of Rights
– it gives to the protection of children’s rights and
best interests’
[23]
Thus for purposes of establishing the jurisdiction of the Children’s
Court, it is irrelevant whether the child is legally
or illegally in
the country. Any contrary interpretation of the words “ordinarily
resident” in section 44 of the Children’s
Act would mean
that foreign children who are in the country illegally (regardless of
their situation and vulnerability) would be
excluded from the
protection of the Children’s Act. Such a construction of the
words “ordinarily resident” would
constitute a violation
of their rights to access to court, and their rights to have their
best interests considered of paramount
importance.
[24]
The third applicant is ordinarily resident in South Africa and within
the jurisdiction of the Children’s Court: Johannesburg
- and
has been so for an interrupted period of at least 10 years. He has
not returned to Zimbabwe and nor could he, as his extended
family
have permanently relocated to South Africa. He has grown up a South
African and has completed his primary and secondary
education in
South Africa. According to the first and second applicants, the only
life that the third applicant has known is in
South Africa. His
friends and family reside here. He ordinarily resides in Johannesburg
and has no intention of leaving.
[25]
The Presiding Officer in the Children’s Court seems to suggest
that the adoption of the third applicant must be treated
as an
inter-country adoption under section 264 of the Children’s Act.
She is mistaken for the reasons set out below.
[26]
Chapter 16 of the Children’s Act deals with inter-country
adoptions. There are four different contexts for inter-country
adoptions. These are:
(a)
The
adoption of a child habitually resident in South Africa by adopters
who are habitually resident in another Contracting State
[7]
;
(b)
The
adoption of a child from a non-convention country by persons in the
country
[8]
;
(c)
The
adoption of a child from in the Republic by persons in non-convention
country
[9]
;
(d)
The
adoption of a child habitually resident in a foreign contracting
State by habitual residents of South Africa
[10]
.
[27]
Section 264 of the Children’s Act deals specifically with the
adoption of a child from a Convention country by a person
in the
Republic. Section 264(1) provides that a person habitually resident
in the Republic who wishes to adopt a child habitually
resident in a
Convention country must apply to the Central Authority of South
Africa.
[11]
[28]
Section 264 of the Children’s Act has no application to the
adoption of the third applicant because he is not habitually
resident
in a Contracting State. The adoption of the third applicant is,
accordingly, not an adoption form a Convention country
by a person in
the Republic but rather a local adoption to be concluded in terms of
Chapter 15 of the Children’s Act and
not Chapter 16 as it is a
local adoption and not an inter-country adoption, primarily because
the third applicant is habitually
or ordinarily resident in the
Republic and so are the first and second applicants. His immigration
status is immaterial to the
application.
[29]
Accordingly, I find that the Presiding Officer misdirected herself on
a matter of law. Her decision accordingly falls to be
set aside.
[30]
I found this matter to be urgent because the third applicant will
turn 18 on 8 March 2018. Had this Court not dealt with
the
applicants’ review application as one of urgency, then the
third applicant would have been denied the prospects
of ever
being adopted by the first applicant before his 18
th
birthday, and could therefore not have been afforded substantial
redress in due course. The prevailing urgency in this application
justifies an expedited hearing of the adoption application in the
Children’s Court.
[31]
The Presiding Officer opposed the application on inter alia the basis
that the third applicant is a foreign national who is
in the country
illegally, hence the Children’s Court has no jurisdiction. As
indicated, the immigration status of the third
application is
irrelevant to the question of whether the Children’s Court has
jurisdiction to consider his adoption application.
Accordingly, the
award of costs must follow the result.
[32]
In the result, I make the following order:
1.
The decision of the respondent to remove the
adoption application from the roll is reviewed and set aside.
2.
It
is declared that the third applicant’s immigration status is
irrelevant for purposes of determining whether the Children’s
Court, Johannesburg, has jurisdiction in terms of section 44 of the
Children’s Act 38 of 2005.
3.
It
is declared that the third applicant is ordinarily resident within
the jurisdiction of the Children’s Court, Johannesburg.
4.
It
is declared that the first applicant’s application to adopt the
third applicant (“the adoption application”)
is a local
adoption and must be determined in terms of chapter 15 of the
Children’s Act.
5.
The Children’s Court, for the district of
Johannesburg, is directed to conclude the adoption application on or
before 26 February
2018.
6.
The applicants are granted leave to apply on the
same papers, duly supplemented, for any order necessary to ensure
that the adoption
application is concluded timeously and without
undue delay.
7.
The respondent is ordered to pay the costs of
this application.
________________________________
F
KATHREE-SETILOANE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION,
JOHANNESBURG
Council
for the Applicants: Adv Courtney
Instructed
by: Centre of Child Law
Council
for the Respondents: Adv Nharmuravate
Instructed
by: State Attorneys
Date
of hearing:
31 January
2018
Date
of Judgment:
6 February 2018
[1]
Philips v Commissioner of
Child Welfare,
Bellville
1956 (2) SA 330(C)
at 334
.
Gold v Commissioner of Child Welfare, Durban, and Another
1978
(2) NPD 305
A.
[2]
CIR v Kuttel
[1992] ZASCA 60
;
1992 (3) SA 242
(A) at 247.
[3]
Philips
at
334G-H
[4]
Robinson v Commissioner of
Taxes
1917 TPD 542-548
.
[5]
Cohen v
CIR
1946
AD 174
at 185H.
[6]
Child
Law in South Africa: Domestic and International Perspectives
(2011) p
220.
[7]
Section 261 of the Children’s Act
[8]
Section 265 of the Children’s Act
[9]
Section 262 of the Children’s Act
[10]
Section 264 of the Children’s Act
[11]
In terms of section 257(1) of the Children’s Act “
Central
Authority” in relation to South Africa means the
Director-General.