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[2018] ZAFSHC 42
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JM and Another v Free State Care In Action and Others (5829/2017) [2018] ZAFSHC 42 (5 April 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO : 5829/2017
In
the matter between :
J
M
1
st
Applicant
D
K
2
nd
Applicant
and
FREE
STATE CARE IN
ACTION
1
st
Respondent
ONALERONE
MADIGOANE
2
nd
Respondent
CARMEN
PARKS
N.O
3
rd
Respondent
FREE
STATE DEPARTMENT OF SOCIAL
DEVELOPMENT
4
th
Respondent
HEAD
OF DEPARTMENT: FREE STATE
DEPARTMENT
OF SOCIAL DEVELOPMENT
5
th
Respondent
MEMBER
OF EXECUTIVE COUNCIL: FREE STATE
DEPARTMENT
OF SOCIAL DEVELOPMENT
6
th
Respondent
CORUM
:
BENADE, AJ
HEARD
ON
:
28 MARCH 2018
DELIVERED
ON
:
5 APRIL 2018
[1]
This judgment in essence concerns the question whether the orders of
a lower court [in this instance a Magistrate’s Court
sitting as
Children’s Court in terms of the Children’s Act, 2005
(Act No 38 of 2005)] can legitimately be directly
set aside by way of
normal urgent application procedure before a single judge (in other
words, not following the route of appeal
according to the Rules, or
the Rule 53 review procedures).
[2]
The Applicants brought an urgent application to set aside an order of
the Children’s Court for the district of Brandfort
granted on 9
March 2018 together with an order that the Family Advocate be
requested to conduct a thorough investigation on urgent
basis in
respect of the best interests of the Applicants’ minor child,
born on 2 June 2017, in respect of whether the Applicants
should
attend to her primary care and residence. The Notice of Motion
further made provision that pending the Family Advocate’s
investigation and recommendation, the Applicants to retain full
parental rights and responsibilities in respect of their minor
child
subject to primary care by the maternal grandparents, that parental
rights and responsibilities in respect of contact be
awarded in
accordance with the provisions of Section 18(2)(b) of the Children’s
Act regarding reasonable telephonic contact
and unrestricted contact
visits under supervision of the maternal grandparents. A
Rule Nisi
would then have issued calling upon all interested persons to show
cause on 26 April 2018 why the above orders should not be made
final.
Background
:
[3]
The succinct background is that the minor (born 2 June 2017), had by
the end of September 2017 been three times admitted to
the Life
Rosepark Hospital in Bloemfontein, for respectively bronchitis,
gastritis and gastro-like symptoms. According to an email
dated 28
September 2017 attached to the papers, the Unit Manager Peadiatric at
the Life Rosepark Hospital, on request of a specialist
peadiatrician
attached to the hospital, referred the matter to a welfare
organisation operating in Brandfort (First and Second
Respondents)
amongst others because of what they observed relating to the
Applicants and also to the child. It was apparently referred
to
Brandfort because of the addresses of the Applicants that the Unit
Manager had, and because the Applicants, according to her,
the
previous two occasions arrived with the minor by ambulance from
Brandfort. What can be garnered from the averments in the founding
affidavit and attachments thereto (the full record of the proceedings
of the Children’s Court under the circumstances of
the type of
application not being available to Court) is that the minor was then
removed (out of the care of the Applicants) in
terms of Section 152
of the Children’s Act, and placed in temporary safe care
pending further investigation, and orders of
the Children’s
Court, in terms of Chapter 9 of that Act. Between October 2017 and 9
March 2018 the matter on different dates
served before the Children’s
Court in Brandfort. On 9 November 2017 the Applicants issued a
previous urgent application for
restoration of the
status
quo ante
forthwith (that full parental responsibilities and rights be restored
to them)
“
pending
the lodging and finalisation of the review application and/or appeal
to be lodged within 20 days of this order”
.
That application served
before Phalatsi, AJ, in November 2017 but was remanded as the matter
was still pending before the Children’s
Court. After a further
postponement that previous application was removed from the roll
(after the final order in the matter by
the Children’s Court on
9 March 2018)
“
for
this application to be instituted”.
[4]
On 9 March 2018 the Children’s Court of Brandfort in terms of
Section 156 of the Act, ordered that the minor be placed
in temporary
safe care, but at certain dates in March to August 2018 the minor is
to stay at her maternal grandparents, where the
Applicants will
assist with caring of the child. The further details of that order
are not relevant for current purposes.
[5]
On 27 March 2018 the Applicants issued the current application for
the reviewing and setting aside of the 9 March 2018 Children’s
Court order with a
Rule
Nisi
with immediate effect, returnable on 26 April 2018.
[6]
There are three categories of difficulties with the current
application, namely the type of “
service
”
of the application on the
Respondents, the prayer for an investigation by the Family Advocate,
and the attempt to review the lower
court by way of application to
set aside (in other words, not following the route of appeal, or the
route of a Rule 53 review procedure).
Service
:
[7]
The application was issued against six Respondents on 27 March 2018.
On the Notice of Motion an email address for each
of the six
Respondents is indicated, for service
“
per
email
”
.
In the citation in the
founding affidavit the correctness of those email addresses are not
confirmed, nor where and how those email
addresses were obtained.
Actually there are no references to (or confirmation of) the email
addresses, or mention that service
would only be by email. Upon
enquiry about the email addresses, the Court was informed, from the
Bar, that it was obtained
from the Respondents sometime ago during
the previous application, and that during that application the
Respondents agreed that
papers may be sent to them by email.
[8]
Needless to say, that previous application has been removed from the
roll and this new application (albeit under the same case
number) was
issued. There is under the circumstances no agreement from the
Respondents that the new application may be
“
served”
by email.
[9]
Accordingly there were no returns of service from a Sheriff available
when the urgent application was called on the time set
in the Notice
of Motion, namely 08h30 on 28 March 2018. There was also no
appearance for any of the Respondents. The only
“
returns”
available were five email
printouts (handed up to me from the Bar), apparently from the
secretary of the Applicants’ attorneys
sent to each of the
aforementioned email addresses, with the application papers attached,
and the message:
“
Kindly
find attached hereto Notice of Motion as well as the Founding
affidavit of J M for your attention”.
[10]
They were sent between 16h12 and 16h15 on 27 March 2018 –
whilst the application was set down and called at 08h30 on
28 March
2018.
[11]
Upon further enquiry about the possible availability of any
“
read
reports”
, or
telephonic (or cell phone) confirmation that each of the Respondents
did receive the application papers, I was provided with
four
“
delivery
notifications”
sent
by
“
Mail Delivery
Subsystem”
to
the secretary of the Applicants’ attorney on 27 March 2018
between 16h13 and 16h49. No further confirmation of receipt
was
available, nor provided.
[12]
Section 44(1)(a) of the Superior Courts Act, 2013 (Act No 10 of 2013)
makes provision that service may take place by means
of transmission
by fax
“
or any
other electronic medium as provided by the Rules”.
At
this stage no provision is yet made in the Rules for service by
“
other electronic
medium”
or
by email. Service of a new application by way of email is thus
not yet allowed.
[13]
I was thus not surprised that there were no appearance for any of the
Respondents and I was also not satisfied that proper
service of the
application occurred. There was no request for a postponement for
proper service. There was also, in the papers,
no case made out for
an
ex parte
application.
Investigation
by Family Advocate
:
[14]
In prayer 3 of the Notice of Motion provision was made that the
Family Advocate
“
be
requested to conduct a thorough investigation, on an urgent basis, in
respect of the best interests of the minor child ….
in respect
of whether the Applicants should attend to the primary care and
residence, and to submit a report and recommendation
in this regard
as soon as possible”
.
[15]
This is not a divorce matter. The powers and duties of Family
Advocates are set out in Section 4 of the Mediation in certain
Divorce Matters Act, 1987 (Act 24 of 1987). It pertains to enquiries,
recommendations and reports to the Court after the institution
of a
divorce action, or regarding the variation, rescission or suspension
of orders made in terms of the
Divorce Act, 1979
. I know of no
provision and/or authority in terms of which this Court has the
authority to instruct the investigation by the Family
Advocate (who
was also not cited as a Respondent) to make recommendations to this
Court, after a Children’s Court made an
order that a child is
found to be in need of care and protection. In terms of Chapter 9 of
the Children’s Act the Children’s
Court is assisted by
designated social workers who conduct investigations and report to
the Court. The Applicants in effect here
want to review the
proceedings of the Children’s Court (as assisted by its social
workers) through this Court (as assisted
by the Family Advocate).
[16]
It is well-known that the office of the Family Advocate are inundated
with cases regarding divorces with the result that reports
from the
Family Advocate are awaited by this Court for months. The Family
Advocate should thus not unnecessarily be loaded with
further cases,
from another area of the law, and furthermore without statutory
provision thereto. Courts are not free to do whatever
they wish to
resolve the cases that come before them. [
Morar v Akoo
2011 (6) SA
311
(SCA) at 319 D
].
Review
of Children’s Court
:
[17]
According to the Notice of Motion an order is seeked that the orders
of the Children’s Court are set aside. In argument
the counsel
for the Applicants submitted that it is not an application for an
interdict but an application for setting aside the
orders of the
Children’s Court.
[18]
There is no record of the proceedings of the Children’s Court
provided in the application or attached as an attachment.
What this
Court knows of the proceedings of the Children’s Court is what
is contained in the founding affidavit and it is
there basically
dealt with in 3 pages from paragraphs 37 to 39.1. We do know
that there was proceedings on 26 October 2017
as witnesses were
subpoenaed and on that date
“
the
proceedings commenced and the evidence of witnesses were led”.
[19]
This application to set aside is not a review [as envisaged in
Section 22
(read with
Rule 53)
of the
Superior Courts Act]. It
is
palpably also not an appeal as envisaged in
Section 51
of the
Children’s Act. That section determines that an appeal against
a decision of the Children’s Court must be noted
and prosecuted
as if it were an appeal against a civil judgment of a Magistrate’s
Court.
[20]
If the prescribed review procedures or appeal procedures were
followed the record of the Children’s Court would eventually
have been before this Court.
[21]
The Applicants aver (as primary ground for the setting aside of the
Children’s Court’s order) that the Brandfort
Children’s
Court did not have jurisdiction over the child. They allege that the
child has at all times been ordinarily resident
in Bloemfontein in
the Free State Province. They then state as follows:
“
I am at advised (sic) which
advice I accept as correct, that in matters where an order that was
granted for lack of jurisdiction
is void ab origine, could be
disregarded without an application for rescission of judgment.
However, I deem it necessary, as this
involves the life of my child
to bring this substantive second application to this Court, for the
rescission of an order void of
all logic, reason and justification.”
This
is a startling statement. The Applicants have thus been advised that
they actually could disregard the order of the Children’s
Court
without an application for rescission, as the Brandfort Court did not
have jurisdiction. That is palpably incorrect. As was
stated by
Froneman, J (as he then was) in
Bezuidenhout
v Pattensie Citrus Beherend Beperk
2001 (2) SA 224
(ECD) at 229 B –
C
:
“
An order of a Court of Law
stands until set aside by a Court of competent jurisdiction. Until
that is done the court order must
be obeyed even if it may be wrong
(Culverwell v Beira
1992 (4) SA 490
W at 494 A – C).”
[22]
In this case the Applicants contend that the Children’s Court
did not have geographical jurisdiction over the minor.
This
should be distinguished from lack of legal capacity
(
“
regsbevoegdheid”
)
as
in
The
Master of the High Court v Motala
2012 (3) SA 325
(SCA)
.
The Court
a
quo
was
empowered by the Children’s Act to make a decision whether the
minor was in need of care and protection
(Section 155)
, and has
jurisdiction over the minor if she is ordinarily resident within the
jurisdiction, or where it is unclear which Court
has jurisdiction
(Section 44).
The Children’s Court did not usurp for itself a
power that it did not have. The Applicants thus could not resort to
self-help
by ignoring the order of the Children’s Court.
[Compare
The
Master of the High Court v Motala,
supra
,
at 333 C – D
as interpreted by
MEC
for Health, EC v Kirland Investments
2014 (3) SA 481
(CC) at 512 I
and
Premier
Foods v Manoim
2016 (1) SA 445
(SCA) at 461 G
.]
[23]
Furthermore, an order of a Magistrate’s Court and/or Children’s
Court is not readily and easily set aside overnight
by way of
application to set aside before a single Judge. The correct procedure
is by way of review or appeal in accordance with
the Rules. The Free
State Division’s Rule 13 of the Rules Regulating the Conduct of
the Proceedings of the Free State High
Court determines that reviews
of proceedings of a lower court are normally heard by two Judges. In
terms of
Section 13(2)(a)
of the (now repealed) Supreme Court Act,
1959 (Act 59 of 1959) in any appeal against a judgment or order of an
inferior Court,
the High Court would be constituted before not less
than two Judges.
Section 14(3)
of the
Superior Courts Act, 2013
provides that appeals from inferior courts are heard by a Full Bench
(of not fewer than two judges) of the High Court. Suffice
to
say that an order of the Children’s Court cannot simply be
ignored on the ostensible ground that it lacked jurisdiction,
as it
stands until set aside by a Court of competent jurisdiction. Until
that is done, the Children’s Court order must be
obeyed even if
it might be wrong. The proper way to set aside an order of the
Children’s Court is by way of civil appeal,
or review, in
accordance with the Rules.
IN
THE RESULT, I MAKE THE FOLLOWING ORDER:
1.
The
application is dismissed.
________________
H
J BENADE, AJ
On
behalf of the Applicants: Adv L Collins
Assisted
by Adv I Sander
Instructed
by :
Lovius
Block Attorneys
BLOEMFONTEIN
No
appearance on behalf of the Respondents .