About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 66
|
|
Child Welfare South Africa Stilfontein and Others v Commissioner of Child Welfare Klerksdorp and Others (45636/2007) [2010] ZAGPPHC 66 (21 July 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORT
H
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 45636/2007
DATE:
21 /07/2010
In
the matter between:
CHILD
WELFARE SOUTH AFRICA,
STILFONTEIN
1
ST
APPLICANT
CORNELIA
PETRONELLA DAMIAO
2
nd
APPLICAN T
ANTONIO
JOSE DEPINHO DAMIAO
3
rd
APPLICANT
And
COMMISSIONER
OF CHILD WELFARE,
KLERKSDORP
1
st
RESPONDENT
DEPARTMENT
OF SOCIAL
DEVELOPMENT
WEST PROVINCE
2
nd
RESPONDENT
LUCILLE
LANGENHOVEN
3
rd
RESPONDENT
EMMARENTIA
VENTER
4
th
RESPONDENT
JUDGMENT
MAVUNDLA.
J.;
[1]
This judgment has been delayed as the result of circumstances
beyond my control, which are not a subject of this matter.
I can do
no better than to apologise to the respective parties to the
prejudice caused as the result of the delay.
[2]
On the 2 October 2007 the applicants sought and obtained on urgent
basis the following order that was granted by Rabie J: 3.1
That the
variation of the detention over in respect of Baby Venter (born 6
July 2007) granted on or about 14 September 2007 under
Reference no
14/1/1/4-506/07 in terms of which the detention of Baby Venter
pending the finalization of the Children's Court proceedings
in
respect of her was granted to the Third Respondent in the place of
the Second and Third applicants, be and is hereby reviewed
and set
aside;
3.2
That
the operation, execution and enforcement of the detention order
granted by the First Respondent on 14 September 2007 be stayed
pending the reconsideration thereof by the first respondent;
3.3
That
the matter be remitted to the First Respondent to consider afresh the
desirability of the variation of the original detention
order in
terms of which the aforesaid
Baby
Venter was ordered to be detained by the Second and Third Respondents
pending the finalization of the Children's Court proceedings
in
respect of her;
3.4
That
the further detention of the aforesaid Baby Venter by the Second and
Third Applicants be and is authorised and ordered pending
the
reconsideration of such variation of the original detention order;
3.5
That
such Respondent(s) as may oppose this application be ordered to pay
the costs thereof;
3.6
That
the applicants be granted further and/ or alternative relief.
4.
That a copy of this order together with the Notice of Motion and
Founding affidavit forthwith be served upon each Respondent.
5
That pending the finalization of this application:
5.1
paragraph
3.1, 3.2 and 3.4 above operate as an interim order; and
5.2
the
further detention by the Second and Third applicants of the aforesaid
Baby Venter be and is hereby authorised."
[3]
Indeed the order was dully served upon the respondents. The second
respondent filed its opposing affidavit deposed to by Ms
Mmakgantshe
Ellen Masie who is a Social Worker by the second respondent at
Potchefstroom.
[4]
On the 30 November 2007 the matter served before my brother Ledwaba J
who stood the matter down to Monday 3 December 2007. On
the latter
date Ledwaba J made the draft order presented to him an order of the
Court, in the following terms:
"1.
That a curator
ad
litem
is
appointed by this Honourable Court. Mr J HA Saunders is appointed as
curator
ad
litem
for
the minor child known as Baby Venter.
2.
That
Mr. Saunders will report to the Honourable Court on 13 December 2007,
with regard to the interest of the minor child; Any report
to be
filled by Mr. Saunders on or before the 11 of December 2007.
3.
That
the applicants file their replying affidavit on or before the 5 of
December 2007.
4.
That the Respondents, if so advised, will supplement their papers on/
before the 7
th
December 2007.
5
That the matter be postponed to the urgent court of the 13 December
2007 for hearing 2007.
6.
That the costs be reserved."
[5]
The first applicant duly served its replying affidavit, together with
confirmatory affidavits of the second and third respondents
as well
as of Van Rooyen, Waters and Van Staden. The matter subsequently
served before me on 13 December 2007 when I reserved judgment.
[6]
This matter centres on a custody order over a baby girl known as Baby
Venter (also known as R and R) born to the fourth respondent
at
Kallie Haas Hospital at Potchefstroom on 6 July 2007. The child is
presently with the second and third applicants since 7 July
2007.
[7]
The first applicant is a duly registered and accredited non-profit
organization dedicated to the protection of children and
promotion of
children's rights and welfare, providing social welfare services for
children in the Stilfontein area.
[8]
The first and second applicant are married to each other and are
foster parents providing,
inter
alia,
a
place of safety for children and have been vetted and approved as
such by the first applicant.
[9]
The first respondent has offices at the Magistrate's Court in
Klerksdorp. Several Magistrates act in turn in the capacity of
the
first respondent. Several magistrates dealt with this matter. The
third respondent is a major widow aged 62 years at the time
of the
institution of this action, resident in Stilfontein. The fourth
respondent is a female aged about 22 years at the time of
the
institution of this action, natural and biological mother of the Baby
Venter.
[10]
On 7 July 2007 the first applicant, through one Marie Van Rooyen,
removed the aforesaid baby from the fourth respondent to
a place of
safety, being the second and the third
applicants.
The removal was as the result of Form 4
1
completed
in terms of Act 74 of 1983. This Form 4 was completed by one Van
Staden. The essence of this report is,
inter
alia,
that:
"the concerned child has been abandoned or is without visible
means of support; lives in or is exposed to circumstances
which may
seriously harm the physical, mental or social well-being of the
child; the fourth respondent has severed the relationship
between
herself and the father of the concerned child; the father of the
child is unable to assist with the maintenance of the
child; the
fourth applicant had only some baby milk but did not know what type
of milk it was; the fourth respondent from time
to time discharged
herself from the hospital, was aggressive towards hospital staff and
not cooperate with them".
2
[11]
On 10 July 2007 the first respondent reviewed and confirmed the
detention of the said child and ordered her further detention
by the
third respondent until 3 September 2007 on which date an inquiry was
to be finalized. The inquiry was however on 3
Septembers
2007 not finalized but further adjourned to 5 September 2007.
[12]
The first applicant further averred in her founding affidavit that it
has since been furnished with copies of part of the second
respondent's report filed with the first respondent. In terms of the
said report the recommendation for the finalization of inquiry
by the
second respondent will be that the child be returned to the fourth
respondent. The date of the finalization was to be 22
October 2007.
[13]
The first applicant then launched the urgent application for the
order I have referred to in paragraph [2] herein above. The
reasons
advanced by the first applicant in bringing the urgent application
was that it made no sense to uproot the child from the
second and
third respondents from the very outset, simply to place her for a
period of 2 weeks only with someone, namely the third
respondents who
will have her for a short period and only hand over to the fourth
respondent. She contended that this would simply
traumatize the
child.
[14]
The first applicant further averred that the report
3
by M.E Masie on which the variation of the initial detention order
was premised did not responsibly justify the variation of the
detention order by substituting the second and third applicants with
the third respondent as there was no logical reason furnished
for
such dramatic change.
[15]
The first applicant contended further that the applicants were
interested parties and were denied an opportunity to make their
respective input which would have been pertinent and useful in
determining what is in the best interest of the child. It is further
contended that the first respondent failed to apply its mind to the
disruption and trauma the resultant short-term change will
have to
the child.
[16]
The second respondent, in opposing the application filed its
affidavit deposed to by Ms Mmakgantshe Ellen Masie. Masie does
not
dispute the date of birth of the child; that the child was
removed
from the fourth respondent and placed in the care of the second and
fourth respondents.
[17]
According to Masie the fourth respondent was discharged from the
hospital the following day of her giving delivery to the child
in
issue. The fourth respondent proceeded to her father's place where
she was met,
inter
alia,
by
the social worker Van Rooyen working for the first applicant. The
fourth respondent was provided with form 4 processes in terms
of s11
of the Child Care Act 74 of 1983 read with Regulation 11 of the Child
Care Act authorising Van Rooyen to remove the child
from her to a
place of safety without a warrant.
[18]
Marie questions the involvement of the first applicant at the request
of the Potchesfstroom hospital whereas the fourth respondent
resides
in Stelfontein. According to Masie, the fourth respondent was
informed to be at court on the 10 July 2007. On the later
date a
detention order was confirmed and the matter was postponed to the 3
September 2007. Masie further avers that it does not
seem that Van
Rooyen prepared further reports as required for the final decision on
the status of the child since the place of
safety order is valid for
a limited period of 14 days.
[19]
According to Masie, the fourth respondent was referred to Clinical
Psychologist Zillen Roos who concluded that the fourth respondent
should be given custody of her daughter again on condition that she
be involved in suitable support program over an extended period
of
time to assist her in improving her parental skills and to allow her
to better her circumstances. Masie further pointed out
that the
applicants failed to attach a copy of this report in the urgent
application. This report was then attached by the first
respondent as
annexure A1
4
.
[20]
Further attached to Masie's affidavit is a copy of her report and
recommendation which provides that the place of safety order
of the
child be varied and the child be transferred to the place of safety
of the third respondent.
5
[21]
Masie further pointed out in her replying affidavit the cultural
differences between the second and third applicants, the fourth
respondent and the third respondents. The fourth respondent and the
third respondents are Afrikaans speaking whereas the second
and third
applicants are either Greek or Portuguese
6
.
She further pointed out that she initiated proceedings that would
allow and facilitate the proximity of the child and the fourth
respondent. She further averred that based on her report, the initial
safety order was varied on 14 September 2007. She further
averred
that notwithstanding the order of the 14 September the applicants
failed to hand over the child. When she eventually traced
and spoke
to the second applicant the latter indicated that she is not willing
to hand over the child.
7
[22]
The applicant seeks to have the decision of the first respondent
reviewed. I find it apposite to refer to the matter of
Ex
Parte D
1958 (2) SA 91
at 93 (G.W.LD)
where
Wessels J stated as follows:
"It
seems to me that this Court would no doubt ordinarily have the power
to review the proceedings of the children's court
at the instance of
an aggrieved party who could show that he has
locus
standi
and
that lawful grounds for review exist. Such power of review might also
be exercised in the circumstances appearing from
RvC
1939 OPD 177.
"
At
page 93H -94 Wessels J said:
"I
have considered whether it could be contended that this Court as the
Upper Guardian of all minors has inherent jurisdiction
to exercise
powers of review at large in relation to proceedings before some
other tribunal in which a minor's interest are involved
whether
mero
motu
or
at the instance of a party who is not in law or authorised to
initiate review proceeding on the minor's behalf and whose
intervention
flows solely from a desire to promote the minor's
interest. It is to be doubted whether this Court has such wide powers
as Upper
Guardian. Normally this Court exercises its functions as
Upper Guardian only when it is formally asked to do so or when the
interest
of the minor's child are pending before it."
The
Court held that the correct procedure is by way of appeal. I am
similarly of the view that the applicants should have noted
an appeal
against the decision that raised their chagrin. However because an
interim order was granted, I shall proceed to consider
whether I
should exercise the inherent review powers this Court has.
[23]
It is trite that the applicant must make its case in its founding
papers and not on the replying affidavit. It is also trite
that in
review proceedings the record of the proceedings from which the
judgment sought to be review emanates must be placed before
the
reviewing court; vide
Mkhatshwa
v Mkhatshwa and Another
8
.
[24]
The applicant failed to place before this Court the record of the
proceedings she seeks to have reviewed. She failed to place
the
reasons upon which the decision she seeks to have reviewed was
arrived upon. Her failure to do so, in my view, flawed her
application. Besides, according to the Mkhatshwa decision
(supra)
the
application is fundamentally flawed. For this reason only the interim
order should be discharged. Assuming that I am wrong in
this
conclusion, which
I
do
not concede, I shall nonetheless proceed to further interrogate this
matter, as I do herein below.
[25]
It is trite that this Court is the upper guardian of minor children.
The applicants are in no way related to the minor child.
However, the
interest of the first applicant in the matter, it would seem stems
from having been alerted of the desperate situation
of the fourth
respondent
9
.
The interest of the second and third applicant stem from the fact
that the child was placed in their place of safety. However,
the
first respondent subsequently reviewed its initial order placing the
child with the second and third applicants. The applicants
must
nonetheless show that there exists lawful grounds warranting this
Court as the upper guardian to exercise its review powers
and review
the decision of the first respondent; vide
Ex
Parte D (supra)
at
93.
[26]
It is also trite that in review proceedings, the applicant must
satisfy the Court that the tribunal whose decision is sought
to be
reviewed, failed to discharge its duties honestly and impartially and
did so capriciously; vide
Turner
v Jockey Club of South Africa
10
.
[27]
What I need to determine is whether there was evidence upon which a
reasonable man would have arrived at the decision the first
respondent reached,
vide
Jordan v Evans N.O. and Another
1953
(2) SA 475.
[28]
I deem it not necessary to chronicle the rest of the contents of the
replying affidavit of the respondent. It suffices, in
my view, to
point out that the first respondent to her answering affidavit has
also attached annexure MM7
11
,
which is a copy of the safety order of Commissioner of Child Welfare
at Klerksdorp authorising the third respondent to admit and
further
detain Baby Venter in terms of s14 (3) of the Child Care Act, of the
11 October 2007.
[29]
In her report,
annexure
M3
12
,
Masie sets out the reasons for her conclusion that it must be
recommended that the child be transferred to the place of safety
of
the third respondent. She had regarded to,
inter
alia,
(a)
the fact that the child was removed from its natural parent a day
following its birth; (b) there has been no contact between
the fourth
respondent and the child; (c) third and fourth respondent belong to
the same cultural group, namely Afrikaans speaking,
while the second
and third applicants are Portuguese. It is in the best interest of
the child that it be placed in the same language
grouping as its
mother.
(I
must
hasten to state that the applicant concedes that the third applicant
is Portuguese, although she alleges that the second applicant
is
Afrikaans speaking.); (d) the fact that the
third
respondent has a sound financial background and does not use alcohol;
(e) the fact that the fourth respondent has since secured
a place of
her own and is now employed.
I
must
remark that this is not disputed by the applicants; (f) the fact that
the second and third applicants are in Klerksdorp and
the fourth
respondent has no transport to visit the child at Klerskdorp. The
third respondent is at Stilfontein where the fourth
respondent is
also resident. Masie was of the opinion that it is in the best
interest of the minor child that there should be regular
contact
between the fourth respondent and the minor child to foster bonding.
[30]
The respondent has also placed before me annexure MM7
13
which
is Form 5. This is the Detention order by the Commissioner in terms
of Regulation 9(2)(d) dated the 5 October 2007. It is
clear from the
reading of this order that the commissioner in arriving in his
decision of 14 September 2007 took into account the
recommendation of
Masie
14
.
[31]
I am of the view that with what was placed before the commissioner,
it cannot be said that the commissioner did not apply his
mind
bona
fide
and
honestly in arriving in the decision of the 14 September 2007. In the
circumstances I find that a reasonable man would have
arrived at the
same decision as the commissioner did. I find it not necessary to
temper with the said decision.
[32]
I am further of the view and hold that the interim order of the 2
October 2007 should be discharged. The consequences of the
discharge
of the interim order are invariably that Baby Venter must immediately
be placed in the detention of the third respondent.
I am further of
the view that it is in the best interest of Baby Venter that she must
be in close proximity with its natural mother,
the fourth respondent
so to easily facilitate regular contact and bonding between the two.
[33]
With regard to cost, it brooks no argument that the costs follow the
event. The applicants being the unsuccessful parties must
be mulcted
with the costs of the first respondent in opposing the application.
[34]
In the result I make the following order:
1.
That
the interim order granted on the 2 October 2007 is discharged.
2.
That
Baby Venter be immediately returned to the third respondent for
detention in accordance with the detention order granted on
or about
14 September 2007 under reference No 14/1/4-506/07 by the
Commissioner of Child Care Klerksdorp.
3.
That
the first applicant, second applicant and third applicant are jointly
and severally, the one paying the other be absolved,
to pay the first
respondent's party and party costs.
N
M MAVUNDLA
JUDGE
OF THE HIGH COURT
Date
of delivery 21 July 2010
APPLICANTS'
ATT
:
S.J. VAN DEN BERG ATTORNEYS
APPLICANTS'
ADV
:
MR. M.G. BOONZAIER
2
nd
RESPONDENTS' ATT: STATE ATTORNEYS
2
nd
RESPONDENTS' ADV: MR. M. MOJAPELO
1
Annexure
B is the relevant form 4.
2
Annexure
A of B above, at paginated page 34-39.
3
Vide
Para 26 at paginated page 16. However annexure J is a letter of
Child Welfare Stilfontein from Van Rooyen to Malaka. The
relevant
report is in fact annexure K at paginated page 61-63.
4
Paginated
page 132-139.
5
Paginated
pages 145-149 annexure MM3.
6
Paginated
page 91 paragraph 5.3.
7
Paragraph
5.14-5.17.
8
2002 (3) SA 441
at 448 A-D Moseneke DCJ (as he then was) said:
"The
other difficulty the applicant has is that no reason whatsoever for
the decision made by the Premier have been placed
before Court. The
Premier has not filed any affidavit resisting this application. This
is so because, for reasons which remain
unclear, the applicant chose
to bring this motion in accordance with form 2(a) of the first
schedule of the Uniform Rules of
this Court and not under Rule 53.
The consequence of this is that the applicant seeks to set aside two
decisions of the second
respondent. The latter has been cited but
not called upon to furnish reasons for the decision in question.
Clearly the applicant
should have utilised the procedure
contemplated in Rule 53. The applicant's failure to do so led to a
fundamentally flawed application.
The prayers the applicant seeks
are incapable of proper adjudication."
9
Paginated page 8 paragraph 9 of the founding affidavit.
10
1
974
(3) SA 633
(A) at 646H.
11
Paginated
pages 155-163.
12
Paginated page 145-149.
13
Paginated
pages 155-157.
14
Vide paginated page 1 56 paragraph 2 thereof.