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[2011] ZASCA 39
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Legal Aid Board: In re Four Children (512/10) [2011] ZASCA 39 (29 March 2011)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 512/10
LEGAL AID BOARD
In the matter of
FOUR CHILDREN Applicants in
the court a quo
Neutral citation:
Legal
Aid Board in re Four Children
(512/10)
[2011] ZASCA 39
(29 March
2011)
Coram:
NAVSA, NUGENT,
HEHER and CACHALIA JJA and PETSE AJA
Heard:
1 MARCH 2011
Delivered: 29 MARCH 2011
Summary:
Jurisdiction of
Supreme Court of Appeal – confined to appeals – case
before it not an appeal – no order made.
_______________________________________________________________________
ORDER
_______________________________________________________________________
On appeal from: High Court
Eastern Cape, Port Elizabeth (Schoeman J sitting as court of first
instance)
No order is made.
_______________________________________________________________________
JUDGMENT
_______________________________________________________________________
NUGENT JA (NAVSA, HEHER and
CACHALIA JJA and PETSE AJA concurring)
[1] The
authority of the courts emanates from and is circumscribed by the
Constitution. The constitutional authority of this court
is confined
to deciding appeals and issues connected with appeals.
1
What has been
placed before us is not an appeal although it has been presented as
such. In truth it is an application by the Legal
Aid Board
2
for a
declaratory order concerning its rights. This court has no original
jurisdiction to hear such an application.
3
[2] While that is the short
answer to this case it is necessary to trace in some detail how the
matter came to be before us to explain
my conclusion. Before doing so
I need to deal with two preliminary matters.
[3] The case
has its origin in an application that was brought in the high court
by four children, with the assistance of the Legal
Aid Board, to
protect their interests in a dispute between their parents. The
dismissal of the application prompted this purported
appeal. Neither
the children nor their parents are parties before us although they
are reflected as such in various documents that
have been filed. The
purported appellant is the Legal Aid Board and there is no
respondent. The Centre for Child Care and the Family
Advocate
4
intervened in
the matter to make submissions.
[4] Shortly before the matter was
to be heard a letter was received by this court from an attorney who
had been consulted by the
mother of the children. Following upon what
she told him the attorney consulted with the children and also
obtained the services
of a social worker to do the same. He informed
us that both he and the social worker were told by the children that
they had not
authorised the proceedings, that until recently they
were unaware that the proceedings had been brought, that they were
distressed
that the proceedings were before us, and that they felt
that their privacy had been invaded.
[5] On our direction a letter was
addressed to the Legal Aid Board, asking whether in the circumstances
it was entitled to persist
in the proceedings. Its reply was that it
indeed intended to proceed. The fact that the Legal Aid Board feels
itself able to proceed
in the absence and against the wishes of the
parties whose rights were there in issue seems to me by itself to
demonstrate ineluctably
that this is not an appeal in that
application but is a fresh application by the Legal Aid Board
concerning its own rights. The
earlier application has merely served
as its springboard.
[6] It is unfortunate that the
children and their parents were not informed of the Legal Aid Board’s
intentions, albeit that
the case no longer concerned their interests
directly. To avoid any further invasion of their privacy we directed
at the outset
of the hearing that the identity of the children and
their parents must not be made public any further than has already
occurred
and we repeat that direction. In this judgment I have not
referred to them by name but instead by the relationship that they
bear
to one another.
[7] The letter that we addressed
to the Legal Aid Board might have alerted it to the question whether
this court has jurisdiction
in the matter but at the outset of the
hearing it soon became evident that it had not been considered. We
accordingly allowed counsel
an opportunity to consider it but she was
not able to advance any submissions of substance on the issue. In the
absence of such
submissions we concluded that we had no jurisdiction
and for that reason we have not heard oral argument on the merits of
the case.
We have nonetheless had the advantage of informing
ourselves of the submissions that would have been advanced so far as
they are
contained in heads of argument that have been filed.
[8] At the time the application
was brought three of the children were 11 years old and the fourth
was 14. Their parents were divorced.
At the time of the divorce a
consent order had been made granting them joint custody of the
children. At first both parents lived
in the same city and an
harmonious arrangement existed between them for mutual access to the
children.
[9] Some time later their mother
wanted to relocate to another country and to take the children with
her but their father objected.
Their mother applied to the high court
for an order authorising her to take the children but the order was
refused. The mother
abandoned those plans but later she moved to
another city in South Africa. Again she wanted the children to
accompany her and that
prompted a repetition of the earlier dispute.
[10] The children found
themselves being caught up in the dispute between their parents. With
further litigation looming they approached
a Justice Centre for
assistance. (The Justice Centre is the name under which the Legal Aid
Board performs its functions in various
regions and I will use the
names interchangeably). The Justice Centre wrote to the mother’s
attorneys requesting an undertaking
that the children would not be
relocated, and would not be placed under any pressure to do so,
failing which an application would
be made to court for appropriate
relief. The mother’s attorneys replied that the Justice Centre
had no standing to bring
legal proceedings, advised that she was
averse to it representing the children, and warned that if
proceedings were brought punitive
costs might be sought against the
relevant officer of the Justice Centre personally. Undeterred by that
unwarranted threat an application
was brought before the high court.
The children were the applicants but they were assisted to bring the
application by the Justice
Centre.
[11] The immediate hurdle to be
overcome was that a minor is not generally competent to engage in
litigation without the assistance
of his or her guardian. In this
case their guardians were obviously disqualified from doing so
because they would have had a conflict
of interest.
[12] The law
in this country has always been conscious of such a difficulty and it
provides a ready and simple mechanism to overcome
it. It confers upon
the courts a wide discretion to appoint a person to substitute the
guardian – commonly known as a curator
ad litem, meaning, if
the Latin term is intimidating, no more than a person to conduct
litigation in the name and in the interests
of the minor.
5
As early as
1902 the subject was dealt with comprehensively by the author of
The
Judicial Practice of South Africa
6
:
‘
Such
curator is appointed by the Court upon the petition of the minor, or,
if he is too young to understand it, of some relative
or friend or
some one who can shew a reasonable interest in him, setting forth
that he has no guardian, and is about to institute,
or defend, an
action at law, and stating also briefly the nature of the case, and
praying the Court to appoint a
curator
ad litem
to
represent him.
…
A
minor may have a
curator
ad litem
appointed
for him even against his will, or without his knowledge, if it can be
shewn to the Court that the application will be
for his benefit and
to his interest.
…
As
a general rule a near relative is appointed
curator
ad litem
,
but this is discretionary with the Court, and frequently the advocate
or attorney employed for the minor has been appointed as
such.
From
the time of the appointment of the
curator
ad litem
,
the action is to be conducted in the name of the minor, duly assisted
by his curator …
The
duty of a
curator
ad litem
is
to represent the minor in the particular case then pending, and to
watch and protect his interest in the case as a good and prudent
father would have done….
A
curator
ad litem
may
be removed by the Court for the same reasons as an attorney employed
in a case. He may also resign his office, but it is in
the discretion
of the Court to accept or not to accept his resignation.’
[13] The discretion that a court
has is as broad as is required to meet every exigency and, if
necessary, the court is capable of
supplementing or altering the
ordinary authority of a curator so far as the occasion requires. Its
sole guide in exercising its
discretion is the best interests of the
minor.
[14] A curator
who does not have the appropriate qualifications and skills to
conduct the litigation might employ a legal representative
to assist
in the ordinary way, but a curator who has those qualifications and
skills will naturally not find it necessary to do
so. Indeed, it is
common for legal practitioners to be appointed to that office, and to
conduct the litigation themselves, and
there can be no objection
unless that creates a conflict of interest.
7
[15] Thus all that was required
to overcome the initial hurdle in this case was for the children –
or the Justice Centre on
their behalf – to ask the court to
appoint a suitable employee of the Justice Centre as curator in the
exercise of its ordinary
discretion. Instead a more complex route was
chosen.
[16] Two distinct forms of order
were claimed. The first was a preliminary order in the following
terms:
‘
In
so far as it is necessary, [appointing]
alternatively
[condoning]
the appearance of the Justice Centre as legal representative for the
Applicants in asserting their constitutional right
to be heard in
civil proceedings affecting them’.
The second claim was for
substantive relief restraining the mother from removing the children
to the city she intended locating
to until such time as the custody
order had been amended by a court, and restraining both parents from
discussing the matter with
the children other than in the presence of
the Justice Centre or its nominee. A temporary order to the latter
effect was asked
for pending the finalisation of the application for
those orders.
[17] The application was brought
as a matter of urgency and the supporting affidavits were brief. The
founding affidavit was deposed
to by the oldest child (the first
applicant, the remaining children being the second, third and fourth
applicants). It set out
briefly the factual circumstances that had
arisen. The application was supported by an affidavit deposed to by
an employee of the
Justice Centre, explaining why it was considered
necessary for the substantive relief to be granted. He also expressed
the opinion
that ‘it is not necessary to bring a prior
application to represent the children’ but that ‘in so
far as it may
be necessary we will ask for an order condoning our
representation of the children’. He went on to say that he
wished to
assure the court that ‘we act in this application
only to give the children the voice that they need to enforce their
best
interest’.
[18] The appointment of an
employee of the Legal Aid Board as curator would have met everything
that was avowedly required and might
have been done by granting the
preliminary order in suitably modified form. The case was presented
instead as an application for
the appointment of a legal practitioner
under s 28(1)(h) of the Constitution (which accounts for the
view expressed in the
affidavit that authorisation was not in truth
required, and for the form in which the order was couched). That
section affords
children the right to have a legal practitioner
assigned to him or her by the state in civil proceedings affecting
the child if
substantial prejudice would otherwise result.
[19] It is not
clear to me why that section was invoked. The Constitutional Court
has said repeatedly that where it is possible
to decide any case
without reaching a constitutional issue then that is the course that
must be followed and it has directed the
courts accordingly.
8
No more was
required for the Justice Centre to achieve its avowed aim than to
have one of its employees appointed curator. Where
a curator is not
able personally to conduct the litigation then no doubt a child is
entitled to have a legal practitioner assigned
under that section but
that was not the present case.
[20] The
application came before Schoeman J. It was taken further off course
by the view that she took of the matter. She said that
the duty of a
legal practitioner contemplated by s 28(1)(h) would have been
‘to advance the case of the children’
(which was no doubt
correct)
9
but that that
was not what the case called for. She said that it called for a
person ‘exercising independent judgment…with
the
necessary objectivity that is needed’, which, she said, was the
function of a curator. Along that line of reasoning she
concluded
that ‘the applicants are not entitled to approach the court
without the assistance of a
curator
ad litem
’
and
she dismissed the application accordingly. (The learned judge went on
to make a further order that is not now material.)
[21] The
learned judge was clearly incorrect. The case indeed called for the
appointment of a person to advance the case of the
children –
for how else was their case to be advanced? And it is not the
function of a curator to adopt a so-called objective
approach. The
Family Advocate is available to provide neutral assistance should
that be required.
10
The function
of a curator is to advance the case of the minor. Indeed, this court
has had occasion to reprimand a curator who approached
his task along
the lines suggested by the learned judge. In
Du
Plessis NO v Strauss
11
an order had
been made by a court in favour of the persons represented by the
curator. On appeal the curator presented argument
in favour of the
appeal because he considered that ‘it would assist the court if
he adopted a “more objective”
approach’.
12
Van Heerden JA
took him to task in the following words (my translation):
‘
This
approach was manifestly in conflict with his duties, because it is
hardly necessary to say that a curator
-ad-litem’s
own
view is irrelevant and that what is expected of him is to advance all
possible arguments advantageous to the relevant minors
and unborn
children ...’
13
[22] The court
could there and then have appointed counsel for the Justice Centre as
curator
14
and then
turned to the substantive relief that had been claimed, and in my
view it ought to have done so, but that is now water
under the
bridge. Shortly after the application was dismissed the mother moved
to another city and took the children with her.
Their father then
brought an urgent application for orders to the effect that the
children should be returned and should reside
with him unless the
consent order was varied. The application was dismissed by Kroon J on
12 January 2010. The factual position
that then prevailed rendered
moot the application that had been decided by Schoeman J. Indeed, the
family difficulties have happily
been resolved. Both parents now live
once more in the same city and the harmonious arrangement that
prevailed before has been restored.
[23] That notwithstanding, the
Legal Aid Board filed what purported to be an application to the high
court for leave to appeal.
An affidavit deposed to by one of its
employees was filed in support of the application, which is unusual
in an application for
leave to appeal. He frankly acknowledged that
the Legal Aid Board had no mandate from the children and set about
explaining why
the application was nonetheless being brought. I need
not recite his explanation in full. In summary he said that the Legal
Aid
Board had a constitutional duty to assist children to assert
their constitutional rights, that the judgment of Schoeman J
threatened
to hamper it in fulfilling its duty, and that it wanted to
have clarity as to its rights.
[24] The principal way in which
it would be hampered, so the deponent said, was that the judgment had
the effect that ‘in
each matter an independent curator should
be appointed [which would mean] that suitably qualified attorneys and
advocates in private
practice will have to be appointed … and
this will have a negative effect on our budget for civil litigation
for children’.
Absent the errors of the learned judge that is
not correct. I have pointed out that there is no bar to an employee
of the Justice
Centre being appointed curator to a minor. Indeed,
employees of the Legal Aid Board will generally be admirably suited
to such
an appointment. They will seldom have a conflict of interest
– as private practitioners might have – and yet they have
the qualifications and skills to conduct the litigation without
further outside assistance.
[25] The Legal
Aid Board turned once more to the Constitution to overcome its
perceived difficulties – on this occasion to
s 38. That
section entitles anyone acting in the public interest to approach a
competent court for a declaration of rights
in certain
circumstances.
15
Invoking that
section the deponent concluded as follows:
‘
[We]
request the above Honourable Court to allow Legal Aid South Africa to
proceed in its own name, in the public interest, to seek
leave to
appeal against the legal question of locus standi only and to grant
leave to appeal as set out in the Notice of Motion
to which this
affidavit is attached’.
It sought orders in the following
terms:
‘
1.
That Legal Aid South Africa is granted leave to act in this appeal in
the public interest.
2. That leave to
appeal is granted against the decision that the children do not have
locus standi to act in their own names’.
[26] It will
be apparent that leave to appeal in the terms set out in the second
prayer is not competent. It is trite that an appeal
lies against an
order that is made by a court and not against its reasons for making
the order.
16
The ‘decision
that the children do not have locus standi to act in their own names’
was not an order made by the court
but no more than the reason given
for the order.
[27] The application came before
Schoeman J who similarly invoked s 38 of the Constitution. In a
short judgment the learned
judge said that an application
contemplated by that section is permitted ‘even if there is no
live case’. After considering
what was meant by ‘public
interest’ for purposes of that section she concluded that the
Legal Aid Board was an ‘interested
party’ (presumably
meaning that it fell within the terms of that section). On that basis
she made the following order:
‘
I
grant leave to appeal to [Legal Aid] to appeal to the Supreme Court
of Appeal against the dismissal of this application and to
obtain a
declarator on the legal standing of children to initiate legal
proceedings’.
[28] Although the learned judge
granted leave to appeal against the order dismissing the application,
that is not what was asked
of her by the Legal Aid Board, and before
us counsel expressly disavowed an intention to appeal against the
order. What it wanted
from us was only declaratory relief that was
expressed as follows in its heads of argument:
‘
That
where Legal Aid South Africa assign a legal representative to a child
in terms of its Constitutional mandate to act in the
best interest of
that child, that the said child will have locus standi to litigate to
protect a constitutional right without the
consent of that child’s
parent/s or without the consent of the Court’.
[29] I see no
reason why the ordinary discretionary powers of the courts at common
law do not suffice for the Legal Aid Board to
perform its mandate,
nor why their ordinary supervisory function needs to be dispensed
with in order for it to do so, particularly
if the wishes of
guardians are to be overridden. But no doubt it is entitled to invoke
s 38 if it feels that to be necessary,
17
though a claim
for a declaration that is as profound as that will undoubtedly call
for notice to be given to interested parties
– not least the
relevant minister of state who is charged with responsibility for the
welfare of children
18
–
which
has not occurred in this case.
[30] From the approach that was
taken to this matter I think it abundantly clear that both the Legal
Aid Board and the court below
considered that the case should be
placed before us to serve as an application for a declaratory order
under s 38. What they
both overlooked is that this court has no
original jurisdiction to consider an application of that kind. This
court is a court
of appeal and its jurisdiction is limited
accordingly. The case that is before us is not properly an appeal
and I think that we are bound to make no order in the matter.
_________________
R W NUGENT
JUDGE OF APPEAL
APPEARANCES:
For
Legal Aid Board: E Crouse
J
M Coertzen
For
Centre for Child Law: A M Skelton
For
Family Advocate: B Pienaar SC
L
Ah-Shene
1
Section
168(3). It may also hear matters that may be ‘referred to it
in circumstances defined by an Act of Parliament’
but that has
no application in this case.
2
Established
by s 2 of the Legal Aid Act 22 of 1969. In the papers it called
itself Legal Aid South Africa but I have referred
to it by its
statutory name.
3
It
might be that the Constitutional Court could entertain an appeal in
the form that the case has been presented to us (cf
Campus Law
Clinic, University of KZN v Standard Bank of SA Ltd
[2006] ZACC 5
;
2006 (6) SA
103
(CC)) but its jurisdiction is not confined in the same terms.
4
Appointed
under s 2 of the Mediation in Certain Divorce Matters Act 24 of
1987.
5
Blacks
Law Dictionary
defines
a curator ad litem as ‘a person who is appointed by a court to
represent the interests of a youth … during
proceedings
before the court’.
The
South African Judicial Dictionary
defines
the term to mean ‘a curator appointed by the court to protect
the interests of some party to a legal proceedings
who is unable, or
is alleged to be unable, to protect his own interests’.
6
C H
Van Zyl
The Theory of the Judicial Practice of the Colony of the
Cape of Good Hope and of South Africa Generally
2ed (1902) pages
21-22. See, too,
Boberg’s Law of Persons and the Family
2ed
by Belinda van Heerden, Alfred Cockrell and Raylene Keightley pp.
902-907.
7
In
Martin NO v Road Accident Fund
2000 (2) SA 1023
(W) at
1034B-C Wunsh J said that it is undesirable for a person to be both
curator and legal representative. But that was said
in the context
of cases where the earning of professional fees might create a
conflict of interest. Whether a conflict of interest
will arise by
acting in both capacities will depend upon the particular case. For
the appointment of legal practitioners to that
office generally see
1034H-1039D. Needless to say, the particular practitioner should be
a suitable person: cf
Soller NO v G
2003 (5) SA 430
(W) para
16.
8
S
v Mhlungu
[1995] ZACC 4
;
1995 (3) SA 867
(CC) para 59;
Zantsi v Council of
State, Ciskei
[1995] ZACC 9
;
1995 (4) SA 615
(CC) paras 3 and 4;
Ferreira v
Levin NO; Vryenhoek v Powell NO
1996 (1) SA 984
(CC) para 7;
Gardener v Whitaker
[1996] ZACC 11
;
1996 (4) SA 337
(CC) para 14;
S v
Bequinot
[1996] ZACC 21
;
1997 (2) SA 887
(CC) para 12;
Motsepe v Commissioner
for Inland Revenue
[1997] ZACC 3
;
1997 (2) SA 898
(CC) para 21;
National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1
(CC) para 21;
Minister of Education v Harris
2001 (4) SA 1297
(CC) para 19;
Ex parte Minister of Safety and
Security: In re S v Walters
[2002] ZACC 6
;
2002 (4) SA 613
(CC) paras 64 and
65;
Jaftha v Schoeman; Van Rooyen v Stoltz
[2004] ZACC 25
;
2005 (2) SA 140
(CC) para 9.
9
Cf
Soller NO
, above, para 26.
10
Soller
NO
, above, para 26.
11
1988
(2) SA 105
(A).
12
At
145J.
13
At
146A-B.
14
Cf
Yu Kwam v President Insurance Co. Ltd
1963 (1) SA 66
(T) at
69-70.
15
Section
38: ‘Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill
of Rights has
been infringed or threatened, and the court may grant appropriate
relief, including a declaration of rights. The
persons who may
approach a court are –
…
.
(d)
anyone acting in the public interest’
…
.’
16
L T C
Harms
Civil Procedure in the Superior Courts
C1.26, and
generally the jurisdictional requirements for an appeal at C1.16.
17
In
the affidavit filed in support of the purported application for
leave to appeal it was said that in
Legal Aid
Board v R
2009 (2) SA 262
(DCLD) Wallis AJ
had ‘ruled that Legal Aid South Africa has locus standi,
without an application to court, to represent
children in court’.
The learned judge made no such ruling. He did no more than to
express a view to that effect in the
cover of a discursus that was
not germane to the issue before him.
18
Cf
Campus Law Clinic
, above, para 27.