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[2016] ZAGPPHC 415
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M v L, D v B (A379/16, A380/16) [2016] ZAGPPHC 415 (9 June 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA)
A380/16
A379/16
DATE:
9/6/2016
Not
reportable
Not
of interest to other judges
Revised.
IN
THE MATTER BETWEEN:
(HIGH
COURT REF.: 51/16)
T M
AND
Z L
AND
IN
THE MATTER BETWEEN:
(HIGH
COURT REF.: 50/16)
A380/16
M B
D
AND
Z B
SPECIAL
REVIEW JUDGMENT
KOLLAPEN
J:
1.
The Honourable Magistrate of the Orkney Magistrate's
Court has submitted the record in the proceedings of the above matter
for special
review in terms of the provisions of section 19(1)(a)(ii)
read with section 24(1) of the Supreme Court Act 59 of 1959. The
basis
upon which the review is sought relates to the provisions of
the Protection from Harassment Act 17 of 2011 ('the Act') and in
particular
what the learned Magistrate has described as the failure
of the Act to provide for the rights of children who are respondents
in
proceedings brought in terms of the Act.
2.
The background to the matter relates to two applications
launched in the Orkney Magistrate's Court involving the conduct of
minor
children and in which applications protection orders were
sought. The applications were initiated in both instances by the
mothers
of the complainants, who were both minors. The respondents in
respect of whom the relief was sought and the Court proceeded to
grant interim protection orders in terms of Section 3 of the Act.
3.
Section 3(a) of the Act provides that 'Upon the issuing
of an interim protection order the court must direct that the interim
protection
order be served on the respondent in the prescribed manner
by the clerk of the court, sheriff or peace officer identified by the
court.'
Form 3
of Regulation 4 promulgated in terms of the Act provides for the
manner of issuance and service of any order made in terms
of Section
3 of the Act and the concern of the learned Magistrate was that it
did not provide specific directions in instances
where the respondent
was a minor as to how and in what manner service of the interim
protection order should take place.
4.
In order to accommodate the fact that the respondents
were minors the learned Magistrate directed amongst other things that
the
interim order be served on the minor respondent in the presence
of a parent or guardian and further directed that the parent or
guardian appear on the return date of the interim order.
5.
In submitting the matter for review the learned
Magistrate took the view that the Act violated the equality guarantee
in so far
as it related to respondents who were minors. The following
is stated by the Magistrate when making the referral:
'It is therefore my humble submission that Protection
From Harassment Act also offends against the right to equality before
the
law in respect of respondent children without providing for a
parent, guardian or appropriate adult. I request the honourable
reviewing
judge to confirm or amend and or provide guidelines to the
effect that when dealing with minor or child respondent, service be
effected in a prescribed manner or any manner directed by the court
in the following manner ...
'
Analysis
6.
Our constitutional dispensation evidenced by the
Constitution of the Republic of South Africa Act No. 108 of 1996
unequivocally
articulates the principle in Section 28(2) thereof that
'A child's best interests are of paramount importance in every matter
concerning
a child.'
7.
The Children's Act 17 of 2011 has numerous provisions
which relate both to the procedural and substantive protection of
children
when they are involved in legal proceedings. Those
provisions include:
Chapter
2 Section 6 (2)(a)-(d) provides that:
(2) All proceedings, actions or decisions in a matter
concerning a child must -
(a)
Respect, protect, promote and fulfil the child's right
set out in the Bill of Rights, the best interest of the child
standard set
out in section 7 and the rights and principles set out
in this Act, subject to any lawful limitation;
(b)
Respect the child's inherent dignity;
(c)
Treat the child fairly and equitably;
(d)
Protect the child from unfair discrimination on any
ground, including on the ground of health status or disability of the
child
or a family member of the child.
Section
6(5) provides as follows:
'A child, having regard to his or her age, maturity and
stage of development, and a person who has parental responsibilities
and
rights in respect of that child, where appropriate, must be
informed of any action or decision taken in a matter concerning the
child which significantly affects the child'.
Section
10 of the Act makes provision for child participation:
'Every child that is of such an age, maturity and stage
of development as to be able to participate in any matter concerning
that
child has the right to participate in an appropriate way and
views expressed by the child must be given due consideration.'
Section
14 deals with children's right of access to court and states:
'Every child has the right to bring, and to be assisted
in bringing, a matter to court, provided the matter falls within the
jurisdiction
of that court.'
Section
15 deals with the enforcement of rights and provides as follows:
(1)
Anyone listed in this section
has the right to approach a competent court, alleging that a right in
this Bill of Rights or this
Act has been infringed or threatened, and
the court may grant appropriate relief, including a declaration of
rights.
(2)
The persons who may approach a
court are:
(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.
Chapter
3 deals with parental rights and responsibilities and section
18(3)(b) provides as follows:
'A parent or other person who acts as guardian of a
child must assist or represent the child in administrative,
contractual and
other legal matters'.
8.
Thus even though the Act may be silent on the manner in
which child respondents are to be dealt with, it is evident that the
provisions
of the Children's Act to which reference has been made
provide an overarching and comprehensive protection to all children
in all
legal proceedings. The proceedings in terms of the Protection
from Harassment Act would certainly fall within the proceedings
contemplated
in the Children's Act and there exists no reason in law
or otherwise, why its provisions should not and do not have
applicability
in dealing with children ( whether as applicants or as
respondents ) in terms of the Act.
9.
Accordingly and notwithstanding that the Act is silent
on this aspect it must follow that the overarching provisions of the
Children's
Act serve to cure whatever
lacuna
the learned Magistrate may have identified. On this
basis it can then hardly be said that the Act violates the equality
guarantee
in so far as it relates to children in treating children
who are complainants differently from children who are respondents.
On
the other hand and in order to ensure that procedurally the rights
enshrined in the Children's Act have practical consequence and
application, there may well be merit in the suggestions of the
learned Magistrate with regard to service and the support and
assistance
of the parent or guardian in respect of minors who are
respondents.
ORDER
10.
In the circumstances I would make the following order:
10.1.
Subject to the necessary Forms
which deal with service and notification being amended to bring them
in line with and to reflect
the legal position unambiguously, it be
required in all matters in terms of the Protection from Harassment
Act 17 of 2011 and involving
a respondent who is a child that:
a)
Service of the interim order be effected on the parent
and or guardian as well as the minor child.
b)
The interim order direct that the parent and/or guardian
appear on the return date of the order together with the minor child
who
is a respondent.
c)
In instances where there appears to be no parent or
guardian, such fact shall be reported to the Court that issued the
interim order
by the person tasked with service of the order in which
event the Court may give further directions for the minor to be
assisted
and supported.
_________________________
N
KOLLAPEN
I AGREE,
_________________________
S
A M BAQWA
JUDGE
OF THE HIGH COURT
IT
IS SO ORDERED.