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[2016] ZAECMHC 12
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Z.G.S v X.V and Others (439/2015) [2016] ZAECMHC 12 (15 March 2016)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE LOCAL DIVISION ,
MTHATHA
CASE
NO.439/2015
In
the matter between :
Z.
G. S.
APPLICANT
And
X.
V.
1
ST
RESPONDENT
THE FAMILY ADVOCATE ,
MTHATHA
2
ND
RESPONDENT
THE MAGISTRATE , MR NKANYUZA
N.O
3
RD
RESPONDENT
THE
MINISTER Of JUSTICE & CORRECTIONAL
SERVICES ,
RSA
4
TH
RESPONDENT
JUDGMENT
PAKADE
J:-
[1]
This is an application for review to set aside the decision of the
Magistrate , the third respondent in terms whereof he awarded
custody
of the minor child to the father of the child , the first respondent
.
[2] The mother of the child died and the applicant, her
aunt, who is the maternal grandmother of the child having been
aggrieved
by the Order of the magistrate, brought this
review application on an urgent basis.
[3] The mother's
child, A. was married to the first respondent but divorced on 8
February 2012 and custody of the child was awarded
to the A. .Upon
her death on 12 May 2013, the first respondent requested custody of
the child from the applicant who refused to
release the child to him.
Subsequent approach to the family on the same request was met with
the same refusal. Thereafter, the
first respondent successfully
applied for custody of the child in the Children’s Court.
[4]
On 26 February 2015, this Court set aside the decision of the third
respondent and ordered that the minor child remain in the
custody of
the first respondent pending determination of this application upon a
proper report having been furnished by the family
advocate on his or
her investigation of the custody, care and primary residence of the
child.
[5] At the commencement of the hearing, Mr Mtshabe,
counsel for the first respondent, submitted in
limine
that
the applicant, being the maternal grandmother of the child and having
not been appointed a guardian nor executor to A. 's estate
or
appointed a curator, has no
locu
standi
in
judicio
to bring this application in terms whereof she claims that the child
be returned to her and/ or her family . Mr Matebese , counsel
for the
applicant , countered that submission and relying on
section
22 and 23 of the Children' s Act , 38 of 2005
submitted that the applicant has a vested interest in the child by
virtue of being his maternal grandmother .
[6] I must consider
the submission of counsel in turn but before doing so I need to
reflect on the relevant provisions of the Children
' s Act in so far
as they protect the interests of children having regard to the fact
that the Children's Act supplement the rights
which a child has in
terms of the Bill of Rights .
All
organs of state in any sphere of government including officials,
employees and representatives of organs of state are enjoined
to
respect, protect and promote the rights of children contained in this
Act
[1]
. In all matters
concerning the care, protection and well-being of a child, the
standard that the best interest of the child is
of paramount
importance must be applied
[2]
.
[7]
Anyone listed in section 15 of the Act has a right to approach the
court and allege that a right in the Bill of Rights or the
Children's
Act has been infringed or threatened and the court may grant
appropriate relief including declaration of rights. The
following are
such persons:
(a)
a
child who is affected by or involved in the matter to be adjudicated;
(b)
anyone
acting in the interest of the child or on behalf of another person
who cannot act in their own name ;
(c)
anyone
acting as a member of , or in the interest of , a group or class of
persons ; and
(d)
anyone
acting in the public interest.
[8]
The applicant approaches the Court as a relative of the child who was
in
loco parentis
over the child after the death of the child's
mother who was custodian thereof. The applicant is the one left by
the mother of
the child to be the custodian to take care of, protect
her and ensure that her best interests are safeguarded. She had a
right
to come to court and seek review of the order of the magistrate
which interfered with the care, protection and best interests of
the
child which were safeguarded by her. In my view, it cannot be said
that she has no
locu standi
to vindicate the rights of her
grandchild. Further, she had a right in terms of section 15 (1) (c)
to act on behalf of S. family
which also would have been entitled to
come to court to vindicate the rights of this child.
[9]
Having disposed
of locu standi
, I must now answer the question
whether, armed with the same
locu standi
to vindicate the
rights of a child she is precluded from claiming guardianship over
the child unless she has been appointed a guardian.
I say this
because of the view I take that the applicant has approached the
court alleging that she was given guardianship rights
by A. before
her death and the court has also powers in terms of section 15(1) to
grant appropriate relief including a declaration
of guardianship
rights to the applicant.
In
my view, the fact that she has not been appointed a guardian is
neither here nor there as she has been exercising guardianship
rights
over the child after the mother’s death and has approached the
court to declare her a guardian as the relief that
the court may
grant in a application brought in terms of section 15 to give effect
to the best interest of the child. In essence
the court can grant the
applicant guardianship of the child in terms of the relief sought as
an alternative in paragraph 3 of the
Notice of Motion. Any submission
to the contrary negates the best interest of the child principle and
is untenable.
[10] Further, the applicant, as an interested
person who is in
loco parentis
of the child is entitled to
invoke the provisions of section 23 and apply for an order granting
her on such conditions as the court
may deem necessary, contact or
care of the child. The following requirements will be compelling to
the court to grant the application:
(a)
the best interest of the child;
(b) the relationship between the
applicant and the child and any other relevant person and
the child ;
(c) the degree of commitment that the applicant has
shown towards the child ;
(d) the extent to
which the applicant has contributed towards the expenses in
connection with the birth and maintenance of the child
; and
(a)
any other fact that should , in the opinion of the court be taken
into account .
[11]
A.'s parents passed away and she had to stay with the applicant
for eight years before her marriage to the first respondent.
The
applicant had close contact with her and had to finance her
education over and above providing her with means of sustenance.
[12] It is not necessary for purposes of deciding the point
involving
locu standi
to also consider the requirements of
section 23. It suffices to find that the applicant has
locu
standi
in
judicio
to approach this court in vindication of
the rights of the child.
The
following order is made:
1.
That the point in
limine
is dismissed with costs.
2.
That the hearing of the main application must be set down as soon as
possible
________________
L.P.Pakade
JUDGE
OF THE HIGH COURT
COUNSEL
FOR THE APPLICANT:
ADV MATEBESE
Instructed
by:
AS ZONO & ASS
Suit
No.153, 1
ST
Floor
ECDC
Building
Mthatha
Tel.
0475324263
COUNSEL
FOR THE 1
ST
RESPONDENT:
ADV MTSHABE
Instructed
by:
P.HOPISI ATTORNEYS
C/o
M. HLAZO ATTORNEYS
1
st
Respondent`s attorneys
22
Durham Street
Office
no. 6, 1
st
floor
Assumption
convent
Cell
0827594290
Heard
on:
10 MARCH 2016
Delivered
on:
15 MARCH 2016
[1]
S 8
(1) and (2) of the
Children`s Act, 2005
[2]
S.9