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[2016] ZAECBHC 9
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Stewart obo S v Member of the Executive Council Department for Social Development, Eastern Cape and Others (628/2013) [2016] ZAECBHC 9 (4 October 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, BHISHO)
CASE NO: 628/2013
In the matter between:
HELEN
STEWART obo A. S.
Applicant
and
THE
MEMBER OF THE EXECUTIVE
COUNCIL
DEPARTMENT FOR SOCIAL
DEVELOPMENT,
EASTERN CAPE PROVINCE
First
Respondent
THE
DIRECTOR-GENERAL OF THE
DEPARTMENT
OF SOCIAL DEVELOPMENT,
EASTERN
CAPE PROVINCE
Second
Respondent
THE
DESIGNATED SOCIAL WORKERS,
DEPARTMENT
OF SOCIAL DEVELOPMENT
Third
Respondent
JUDGMENT
MBENENGE J:
Introduction
[1]
This application started off during October 2013 as a quest founded
on the provisions of the
Promotion of Administrative Justice Act 3 of
2000
for an order setting aside the alleged failure by the second
and/or third respondent(s) to investigate and compile a report on the
care and circumstances of a minor child, A. S. (A.), for purposes of
determining whether she was a child in need of care and protection,
and for the grant of other relief ancillary or consequential
thereto. Approximately 6 months thereafter, during April 2014,
the Children’s Court, Alice (Children’s Court) found A.
to be in need of care and the applicant to be a suitable foster
parent. A foster care grant was also recommended, so much so
that the applicant’s concerns got to be allayed, resulting
in
the parties resolving their differences, save the question of costs.
[2]
Because a judgment for costs involves a decision on the merits, and a
claim for costs cannot stand
alone,
[1]
it has become necessary to consider the merits of the application
with a view to determining who as between the applicant and the
respondents would have been successful had the matter proceeded to
its logical conclusion. To that end, I deal first with
the
relevant statutory background and, thereafter, the factual matrix of
the case.
Statutory background
[3]
In terms of
section 154
of the Children’s Act 38 of 2005 (the
Act) a person under whose care a child placed in temporary safe
custody may, if she/he,
on reasonable grounds, believes that the
child is in need of care, refer the child to a designated social
worker for investigation
contemplated in section 155(2) of the Act.
[4]
Section 155(2) of the Act casts a duty upon a designated social
worker, before a child believed
to be in need of care and protection
as contemplated by section 154 of the Act is brought before a
children’s court for a
decision (whether the child is in fact
in need of care), to investigate the matter and within 90 days
compile a report in the prescribed
manner on whether the child is in
need of care and protection.
[5]
If the court finds that the child is in need of care and protection,
the court may make an appropriate
order in terms of section 156.
[2]
[6]
The court may, in respect of a child in need of care and protection,
make any order which is in
the best interest of the child, including
an order, if the child has no parent or care-giver, that the child be
placed in foster
care with a suitable foster parent.
[3]
Factual background
[7]
The order of 7 April 2014 referred to in paragraph [1] above was
granted on the strength of a
“
SOCIAL
WORKER’S REPORT AND NECESSARY DOCUMENTS SUBMITTED
”,
ostensibly in terms of section 155 (7) of the Act, in so far as it
found A. to be a child “
in
need of care
”
and, ostensibly in terms of section 156(1)(e)(i) of the Act, in so
far as it found the applicant to be a suitable foster
parent. The
circumstances in which the order was granted are not altogether
clear.
[4]
[8]
It is common cause or at least not in dispute that A.’s
biological mother, the late M. S.
(the deceased), passed away on 14
November 2007. A. is on record as having not had any form of
relationship with her biological
father, whose whereabouts are, in
any event, unknown. When she was still alive, the deceased
raised A. as a single parent
and as such was responsible for her
care, maintenance and support. A. was about seven years old
when the deceased expired,
and ended up being given care by her
maternal aunt, the applicant.
[9]
During 2012 the applicant solicited the assistance of the Social
Worker, Alice towards the care
of A.. There is a dispute of
fact on the papers regarding the precise nature of the assistance the
applicant sought. According
to the applicant she lodged an
application for a foster care grant in respect of A., during April
2012, whilst according to the
respondents the applicant never
attended upon the Alice Social Worker’s office during April
2012, but did so in May 2012
with a view to seeking assistance from
the Social Worker concerning A.’s academic abilities and
progress at school, and not
otherwise.
[10]
According to the applicant, when it became clear that she was getting
no joy, because the social worker concerned
had directed her to
search for A.’s biological father which was well neigh
impossible for her to achieve, and after demands
made by her attorney
urging the social worker to compile a report of her investigations
did not yield positive results, she resorted
to launching the instant
application.
[11]
The letter penned by the applicant’s attorneys of record
predating the launch of the application (the
letter is dated 17
September 2013) and allegedly transmitted to,
inter alia
, the
first respondent, captures the essence of the applicant’s
complaint in the following terms:
“
We
have to advise that we are acting for and on behalf of our client, MS
Helen Stewart. Our instructions are to advise that our
client is the
aunt and care giver to A. S., a fourteen year old minor whose
biological mother, M. S. passed away on the 14
th
of November 2007. We are informed that at all material times hereto,
the deceased was single parent who was solely responsible
for the
care, and support of the minor child.
According to our
instructions, our client has no knowledge of the particulars,
whereabouts nor the identity of the biological father
of the minor
child, in as much as she was never introduced to her or to the
family. Our client, a forty five year old unemployed,
illiterate and
indigent woman has no means to maintain and support the child in
issue.
We are advised by our
client that in or about April 2012, she approached your Alice
district office for the purpose of presenting
an application for the
Foster Child Grant in respect of the child in issue. We are further
informed that our client was referred
to a Social Worker. According
to our client the Social Worker in attendance advised her to go back
home and trace the biological
father of the minor child in issue.
According to the Social Worker in attendance, her department and/ or
SASSA had no obligation
to pay a client was advised to approach
Maintenance Court for a maintenance claim against the biological
father.
We are informed, further
that our client was informed that she could only return to the office
in issue, only if she has a death
certificate in respect of the
biological father, and it was only in those circumstances that
assistance could be extended to her.
We have no advice,
therefore, that the advice, opinion and directive issued to our
client at the behest of the employee, the Social
Worker in attendance
was both unlawful and unconstitutional, same constitute an
infringement of the best interest of a child standard
provided in the
Children’s Act No 38 of 2005.
Our instructions
therefore, are to demand, as we hereby do, that a designated Social
Worker, responsible for the municipal area
of Alice, be directed,
within 30(thirty) days of receipt of this letter, to investigate the
living conditions and personal circumstances
of our client and those
of the minor child in issue. Within that period compile and draw a
report, wherein recommendations regarding
whether the child in issue
is in need of care or not are made. Further, and within that period
file or caused to be filed with
Children’s, Manager and /
or Assistant a date upon which an application for the appointment of
our client as Foster
parent to the minor child in issue could be
presented to the said court. After having obtained such date to take
all necessary
steps to convey or communicate same to our client.
Unless there is
substantial compliance with the contents of the demand presented
heretofore, our instructions are to move an application
to compel and
enforce our client’s constitutional rights without any further
reference to yourself or to your relevant officials.”
Sic.
[12]
The applicant has, albeit in a convoluted and verbose fashion,
pleaded as much in the affidavit filed in
support of the relief she
sought.
[13]
In the affidavit delivered in opposition to this application, deposed
to by a certain Lindelwa Nompumelelo
Primsrose Sepotela (Ms
Sopotela), a qualified Social Worker and Service Office Manager in
the employ of the Department of Social
Development stationed at
Alice, it is averred that the applicant’s name does not appear
on the intake register of attendees
for April 2012.
[5]
The absence of one’s name in the register, according to
Ms Sopotela, implies that the person concerned did not, on
the
particular date, attend upon the Social Worker’s office.
Ms Sopotela has further averred:
“
8.3
The purpose of the applicant’s attendance at the office of the
Third Respondent during May 2012, when her
name appears was to attain
assistance with regards to A. S. (hereafter “the minor child”)
regarding her being a slow
learner.
8.4
The applicant was thereafter assisted with the referral of the minor
child to a psychologist,
whereon the 31
st
May 2012, the
applicant accompanied by the minor child and social worker attended
an assessment with the psychologist.
8.5
The minor child was evaluated as being a slow learner and referred to
a special needs school
in Port Elizabeth for the appropriate
assistance.”
[14]
The investigation into the circumstances of A.’s care and
protection, goes the respondents’ case,
was subsequently
undertaken culminating in A. being found to be eligible for a foster
care grant, hence the order of the Children’s
Court issued on
17 April 2014.
[15]
The applicant delivered no affidavit in reply to the allegations made
in the answering affidavit deposed
to by Ms Sotopela.
Is there a material
dispute of fact on the papers?
[16]
Before giving an answer to the question at hand, we should be
reminded that where a disputed application
is settled on a basis
which disposes of the merits except insofar as costs are concerned,
the court should not have to hear evidence
to decide the disputed
facts in order to decide who is liable for costs, but the court has,
with the material at its disposal,
to make a proper allocation as to
costs.
[6]
[17]
The parties’ versions differ in material respects. What
needs to be considered is whether there
is a material or genuine
dispute of fact on the papers which would otherwise have necessitated
a referral of the matter to oral
evidence. One of the principal
ways, relevant to the facts of this case, in which such dispute
arises is when the respondent
denies all the material allegations
made by the applicant and produces positive evidence which may
include statements by deponents
or witnesses to the contrary.
[7]
Analysis
[18] As
already pointed out, Ms Sopotela denies that the order granted by the
Children’s Court on 07 April
2014 was a sequel to the
applicant’s visitation at the Social Worker’s office
during April 2012. Even though
Ms Sopotela is not the social
worker who attended to the applicant when she visited the Social
Worker’s office during May
2012, she claims, by virtue of her
position in the office, to have “
access to all documents
relevant to the placement of children in need of care and protection
where reports in respect of those children
were compiled by the
social worker
[
s
]
who are stationed at the office
”.
[19]
Much as the social worker who attended to the applicant during
her proven visitation of May 2012 and
the one who testified during
the relevant Children’s Court proceedings
[8]
delivered no confirmatory affidavits, Ms Sopotela has, at the very
least, placed positive evidence, not controverted by the applicant
in
reply, pointing to her having access to the relevant documents
in the Social Worker’s office; she has placed cogent
documentary evidence that belies the applicant’s allegation of
a visitation that took place in April 2012; she has provided
sufficient detail of what the May 2012 visitation yielded.
[9]
[20]
It was a matter of relative ease for the applicant, if what Ms
Sopotela testified to was not the truth, to
controvert Ms Sopotela’s
allegations in a replying affidavit. That did not take place.
On the papers as they
stand, the respondents’ assertion
that the grant of the order by the Children’s Court was not
necessarily triggered
by the launch of this application, but by a
separate process set in motion independently of these proceedings,
ought to prevail.
[10]
The
applicant would, in my view, have been the unsuccessful litigant.
However, because she was asserting a constitutional
right
against the state,
[11]
she
ought not to be ordered to pay the costs of the application.
[12]
Conclusion
[21] In
all these circumstances, there shall be no order of costs.
S M MBENENGE
JUDGE OF THE HIGH
COURT
Counsel
for the Applicant:
Mr
M Mayekiso
Instructed
by
Z
YM Ndzabela Incorporated
Butterworth
C/O
S Z Sigabi
King
William’s Town
Counsel
for the Respondents:
Mr
N Nabela
Instructed
by :
The
State Attorney
East
London
C/O
Shared Legal Services
King
Williams Town
Date heard: 22 September
2016
Judgement delivered : 04
October 2016
[1]
Nxumalo
v Mavundla
2000 (4) SA 349
(D) at 352F.
[2]
Section
155(7) of the Act.
[3]
Section
155(1)(e)(i) of the Act.
[4]
This
will be discussed in greater detail later in this judgment.
[5]
This
register is said to embody names of all persons who attended upon
the office of the Social worker in Alice “
for
any reason whatsoever
”.
[6]
Jenkins
v SA Boilermakers, Iron and Steel Workers and Shipbuilders Society
1946
WLD 15
;
Gamlan
Investments (Pty) Ltd v Trillion Cape (Pty) Ltd
1996
(3) SA 692
(C) at 700G-H;
First
National Bank of Southern Africa Ltd t/a Wesbank v First East Cape
Financing (Pty) Ltd
1999
(4) SA 1073
(SE) at 1079G-I; and
De
Kock v Minister of Public Works
[2004]
1 All SA 282
(Ck) at 296i-j.
[7]
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1163.
[8]
According
to the relevant record “
E
N ZENGETHWA
”
is the social worker who appeared on the day the order favourable to
the applicant was granted.
[9]
Namely,
the referral of Annoleen to Port Elizabeth on 30 May 2012 for the
rendering of assistance in relation to her academic
problems.
[10]
In
application proceedings the approach is that the facts stated by the
respondent, together with the admitted or undenied facts
in the
applicant’s founding affidavit, provide the factual basis for
the determination –
Reddy
v Siemens Telecommunication (Pty) Ltd
2009
(3) SA 187
(W) at para [19]; see also
Plascon-Evans
Paints (LTD) Ltd v Decro Paint and Hardware (Pty) Ltd
1984
(3) SA 623 (A).
[11]
The
right to just administrative action enshrined in section 33 of the
Constitution, given effect to by section 3 0f the PAJA.
[12]
Affordable
Medicines Trust and Others v Minister of health and Another
[2005] ZACC 3
;
2006 (3) SA 247
(CC) and
Biowatch
Trust v Registrar Genetic Resources and Others
2009 (6) SA 232
(CC).