About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 235
|
|
G.V.D.M v C.V.D.M (A100/2004) [2015] ZAGPPHC 235 (2 March 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:
A100/2004
DATE: 2 MARCH
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
G[...]
V[...] D[...]
M[...]
.........................................................................................................................
Appellant
And
C[...]
V[...] D[...]
M[...]
......................................................................................................................
Respondent
JUDGMENT
MATOJANE J
INTRODUCTION
[1]
This is an appeal against the order of Magistrate Van Der Merwe in
the Children's Court for the district of Nelspruit dismissing
the
points
in limine
raised
by the appellant to an application by respondent for the amendment of
the contribution order in terms of sl61 (l)(a)(ii)
of the Children's
Act 38 of 2005 ("The Act"). The respondent being a minor
was represented by Mr. Du Plessis from Legal
Aid Justice Centre in
Nelspruit. I shall revert to these
in
limine
points
herein below
BACKGROUND
[2] On 28 February
2013 the Children's Court made a finding that the respondent was a
child in need of care and protection as she
lives in or is exposed to
circumstances which may seriously harm her physical, mental or social
well-being
1
.
[3]
The court made
inter
alia,
the
following contribution order:
"1.
Dat beide C[...]
se ouers die reg en verpligting het om C[...] te versorg en kontak
met haar te he.
2.
Dat C[...] die
beurswat aart haar beskikbaar gestel is te 'the Diocesan School for
Girls' opneem en dat sy in terme van die bepalings
van Artikel 46(d)
van die wet in versorging van genoemde skool geplaas word.
3. Dat haar vader
'n maandelikse bed rag van R1500.00 aan C[...] betaal as kontribusie
tot haar versorging.
4. Dat C[...] as
afhanklike op haar Vader se mediese fonds geregistreer bly."
[4] Unbeknown to the
parties, the bursary awarded to the respondent was not sufficient to
cover all her school expenses as it only
covered the respondent's
school fees and does not include boarding fees. The boarding fees
amounted to R61 955.00 per year.
[5] On the 14 August
2013 the respondent's legal representative brought an application for
the amendment of the contribution order
in terms of sl61(l)(a)(ii) of
the Act for an order that appellant be ordered to pay a contribution
in the sum of R5078.00 and that
he be ordered to pay the boarding
fees of the respondent. At the time, the respondent was still a
minor. On the day of the hearing
the appellant requested a
postponement and on the next court appearance on 24 October 2013, the
respondent had already turned 18
and no longer a child as defined in
the Act.
[6] The appellant,
who is the respondent's father denies liability for the respondent's
boarding fees and argue that the court order
placed respondent in
partial care and in terms of s46(l)(d) of the Act, there must have
been an agreement made between the appellant
and the school and as
there was no such agreement, the school cannot hold him liable for
respondent's fees. Appellant further argues
that the order of the
Children's Court made in terms of sl56 of the Act has lapsed as the
respondent has now reached the age of
majority whilst the proceedings
were going on.
[7] The magistrate
found that it was in the respondent's best interest to be placed in
the Diocesan School for Girls in Grahamstown
as she will be removed
from her circumstances and away from the influence of her parents.
The court ordered that the contribution
order be amended to make
provision for boarding school fees.
[8] The court was
satisfied that appellant could afford to pay for respondent's
expenses as he is an attorney practicing for his
own account and
lives in S[...] N[...] R[...] in a big house with six bedrooms, four
bathrooms, a swimming pool and bioscope facility.
The appellant also
told the social worker that he "n goeie inkomste verdien".
POINTS
IN LIMINE
[9] The appellant
contended before the Children's Court as he did before us that:
(a) the contribution
order made in terms of sl59(3) of the Act has lapsed as the
respondent was no longer a child as defined.
(b)
The court
a quo
accordingly
did not have jurisdiction.
(c)
The legal representative of the minor child did not have
locus
standi
to
depose to the affidavits on behalf of the respondent.
RELEVANT
LEGISLATIVE PROVISIONS
[10]
10.1 In section 1 (1) of the Act
'child'
is
defined to mean a person under the age of 18 years;
10.2
Section 150 is headed
Child
in need of care and protection
and
provides:
"(1) A child
is in need of care and protection if, the child-
(a)
(b)
(i) lives in or
is exposed to circumstances which may seriously harm that child's
physical, mental or social wellbeing. "
10.3 Section 156 -
Orders when child is found to be in need of care and protection:
"(1) If a
children's court finds that a child is in need of care and protection
the court may make any order which is in the
best interests of the
child, which may be or include an order-
(a) referred to
in section 46;
(b)
(c)
(d)
(e);"
10.4 Section 46 -
Orders children's court may make (1) A children's court may make the
following orders:
"(a) An
alternative care order, which includes an order placing a child-
(i) in the care
of a person designated by the court to be the foster parent of the
child;
(b)
(c)
(d) a partial
care order instructing the parent or care-giver of the child to make
arrangements with a partial care facility to
take care of the child
during specific hours of the day or night or for a specific period
(2) A children's
court may withdraw, suspend or amend an order made in terms of
subsection (1), or replace such an order with a
new order."
10.5 Section 159 -
Duration and extension of orders:
"(1) An
order made by a children's court in terms of section 156- (a) lapses
on expiry of-
(i) two years
from the date the order was made; or
(ii) such shorter
period for which the order was made; and
(b) may be
extended by a children's court for a period of not more than two
years at a time.
(3)
No court order referred to in subsection (1) extends beyond the date
on which the child in respect of whom it was made reaches
the age of
18 years
."
[11]
In terms of s46(l)(d) of the Act, a partial care order can be made
instructing the parent or care-giver of the child to make
arrangements with a partial care facility to take care of the child
during specific hours of the day or night or for a specific
period.
Section 76 expressly excludes care of a child as a boarder in a
school hostel and residential facilities managed by a school
from the
ambit of partial care. In
casu,
the
school has admitted that no arrangements have been made for the
payments of the monies owed and in terms of s76 respondent could
not
have been placed in partial care as ordered by the Children's Court.
It does not avail the respondent as contended by her counsel
that
appellant did not object to respondent bein placed in the care of the
Grahamstown School for girls and that appellant could
easily afford
the financial expenses of the respondent.
[12] It follows
therefore, in my view that the magistrate erred in ordering that
respondent be placed in partial care and on this
ground alone the
appeal should succeed as the money owed to the school has nothing to
do with maintenance of the respondent as
it is a delictual matter
between appellant and the school.
[13]
On the first point
in
limine
counsel
for the respondent submitted in her heads of argument and in court
that section 176 of the Act places a safety net to the
protection of
children turning 18 whilst in the alternative care and therefore the
contribution order must similarly remain in
place until the end of
the year in which the child turns 18. The difficulty with this
submission is, firstly that the court order
purported to place
respondent under partial care in terms of section 46(l)(d) not
alternative care and secondly, section 176 specifically
caters for
instances where a child is placed in alternative care. It is
therefore incorrect as submitted by counsel that the contribution
order is interrelated to the alternative care.
[14]
I am in agreement with the appellant that the order that respondent
seeks to vary is no longer enforceable. In terms of section
159(3) of
the Act, an order in terms of section 196 cannot extend beyond the
date on which the child reaches the age of 18 years.
This finding
answers the second and third points
in
limine.
In
my view, the magistrate was incorrect in dismissing the points
in
limine.
[15] It is for the
above reasons that the appeal should succeed with no order as to
costs.
K
E MATOJANE
JUDGE
OF THE HIGH COURT
I agree
L M
MOLOPA-SETHOSA
JUDGE OF THE HIGH
COURT
1
s150(1)(f)