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[2008] ZAWCHC 79
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Fish Hoek Primary School v Welcome (A154/08) [2008] ZAWCHC 79; 2009 (3) SA 36 (C) (17 September 2008)
REPORTABLE
IN THE SUPREME COURT OF SOUTH
AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO.: A 154/08
In the matter between -
FISH HOEK PRIMARY SCHOOL
Appellant
and
GREGORY WELCOME
Respondent
_____________________________________________________________
JUDGMENT DELIVERED THIS 17
th
DAY OF SEPTEMBER, 2008
_____________________________________________________________
THRING, J.:-
On the 31
st
March, 2006 the appellant issued summons against the respondent in a
magistrate’s Court claiming the sum of R1,610.00 “being
in respect of arrear school and related fees, for the period July,
2003 to date”, with interest and costs. The respondent
entered
appearance to defend the action and in due course delivered a plea,
the contents of which need not be set out here. The
matter went to
trial on a set of agreed facts, which were said by the magistrate in
his judgment to be as follows:
“
The material facts relevant to
this case which is (
sic
)
common cause are the following:
(
sic
)
Defendant is the natural father and parent of the minor child to
whom the school fees which underline (
sic
:
underlie?) the action relate. The minor child was born out of
wedlock. The defendant is not the custodian parent or the guardian
of the minor child. The defendant did not enter into any agreement
with the plaintiff for the payment of school fees in respect
of the
minor child. The quantum of the school fees in issue (is) an amount
of R1610.00.”
The single issue before the Court was
formulated by the magistrate in the following terms:
“
The only legal question is
whether the defendant is liable to the plaintiff for the payment of
school fees in respect of the minor
child.”
No evidence was led. After hearing
argument from the attorneys acting for the applicant and the
respondent, respectively, the magistrate
gave judgment. He dismissed
the appellant’s action, with costs. That was on the 14
th
June, 2007. The appellant appeals to this Court against the
magistrate’s decision.
It appears to be common cause that
the appellant is a so-called “public school” as defined
in section 1 of the South
African Schools Act, No. 84 of 1996 (to
which I shall refer herein as “the Schools Act”). I say
this because, in its
summons, the appellant describes itself as -
“
....... a school and a juristic
person in terms of
Section 15
of the
South African Schools Act, 84 of
1996
.........”
Section 15 of the Schools Act reads:
“
Every public school is a
juristic person, with legal capacity to perform its functions in
terms of this Act.”
In his plea the respondent “admits
the citation of the parties”. In section 1 of the Schools Act
“public school”
is defined as “a school
contemplated in Chapter 3”. Chapter 3 of the Schools Act
provides, in turn, in section 12(1)
that:
“
The Member of the Executive
Council must provide public schools for the education of learners out
of funds appropriated for this
purpose by the provincial
legislature.”
“
Member of the Executive
Council” means, in terms of section 1 of the Schools Act:
“
......(T)he Member of the
Executive Council of a province who is responsible for education in
that province.”
As is apparent from the agreed
facts, the appellant did not base its claim on any contractual
nexus
between itself and the respondent. It relied on the provisions of
section 40(1) of the Schools Act, which reads:
“
A parent is liable to pay the
school fees determined in terms of section 39 unless or to the extent
that he or she has been exempted
from payment in terms of this Act.”
Section 39 of the Schools Act
stipulates that “school fees may be determined and charged at a
public school only if a resolution
to do so has been adopted by a
majority of parents” attending a general meeting of parents in
terms of section 38(2). This
aspect is not in issue in this case.
Section 41(1) goes on to provide that “a public school may by
process of law enforce
the payment of school fees by parents who are
liable to pay in terms of section 40”.
It is the interpretation to be
attached to the word “parent”, for the purposes of
section 40(1) of the Schools Act,
which lies at the heart of this
matter. The term is defined in section 1 of the Act as follows:
“’
parent’ means -
the parent or guardian of a learner;
the person legally entitled to
custody of a learner; or
the person who undertakes to fulfil
the obligations of a person referred to in paragraphs (a) and (b)
towards the learner’s
education at school.”
Dr.
van
Rensburg
, who appeared for
the appellant both at the trial and before us on appeal, argued, if I
understood him correctly, first, that the
appellant’s claim
against the respondent is governed by the Schools Act; secondly,
that part (a) of the definition of “parent”
in the
Schools Act must be construed so as to include a non-custodian parent
such as the respondent; and, thirdly, if it is so
construed, that the
respondent is legally liable to pay his illegitimate child’s
school fees to the appellant. This was
also the argument which he
unsuccessfully advanced before the magistrate at the trial.
He also has another argument, which
he propounded for the first time before us on appeal. It is based on
section 21 of the Children’s
Act, No. 38 of 2005, to which I
shall refer herein “the Children’s Act”. Section
21(1) of this Act reads:
“
The biological father of a
child who does not have parental responsibilities and rights in
respect of the child in terms of section
20, acquires full parental
responsibilities and rights in respect of the child –
if at the time of the child’s
birth he is living with the mother in a permanent life-partnership;
or
if he, regardless of whether he has
lived or is living with the mother –
consents to be identified or
successfully applies in terms of section 26 to be identified as the
child’s father or pays
damages in terms of customary law;
contributes or has attempted in good
faith to contribute to the child’s upbringing for a
reasonable period; and
contributes or has attempted in good
faith to contribute towards expenses in connection with the
maintenance of the child for
a reasonable period.”
(Section 20 governs the
responsibilities and rights of a father who is or was married to the
mother of the child concerned, and
it is not applicable here).
Section 21(4) goes on to provide that:
“
This section applies regardless
of whether the child was born before or after the commencement of
this Act.”
In terms of section 315 of the
Children’s Act, it takes effect on a date fixed by the
President by proclamation in the Gazette.
Section 21 of the Act came
into operation in this way only on the 1
st
July, 2007, some two weeks after the magistrate had given judgment.
Dr.
van Rensburg
nevertheless contends that the Children’s Act applies to the
present matter, alternatively, that it has some bearing on it,
inasmuch as the issues between the parties are still “alive”
today, and, he argues, section 21(1) of the Children’s
Act has
brought about certain fundamental changes to the common law and to
the Schools Act as regards non-custodian, unmarried
fathers of minor
children, including their liability to schools for school fees.
There was no appearance before us
for the respondent, so that we have had the benefit of hearing only
the submissions made on
behalf of the appellant. I shall deal with
them more or less in the sequence in which I have attempted to
summarise them above.
I shall assume in the appellant’s
favour, without deciding, that Dr.
van
Rensburg
is correct in
contending that the appellant’s claim against the respondent is
governed by the provisions of the Schools Act,
although this is not
altogether clear from the pleadings or from the agreed facts. This
is the first leg of his argument based
on the Schools Act.
The
next step in his argument is that part (a) of the definition of
“parent” in section 1 of the Schools Act must be
interpreted so as to include a non-custodian parent such as the
respondent, and that the magistrate erred in construing the
definition
as excluding a non-custodian parent. At first blush this
contention might appear to have some merit: but in my judgment the
Schools
Act must be viewed against the background of other, earlier
legislation and the manner in which that legislation has been
interpreted
by this Court.
On the 1
st
April, 1990 the Education Affairs Act (House of Assembly), No. 70 of
1988 came into operation. I shall refer to it herein as the
Education Affairs Act. Large portions of this Act are still in force
today. In September, 2000 a matter not dissimilar to the
present
case came before this Court on appeal from a magistrate’s
Court. The governing body of a school had sued the divorced
non-custodian parent of one of its pupils for school fees. The
school was a so-called “state-aided” school. It based
its claim on the provisions of section 102 A(1) of the Education
Affairs Act, which reads:
“
The parent of a pupil admitted
to a state-aided school shall pay such school fees as the governing
body of that school may levy.”
Had the school been a so-called
“public school” as defined in section 1 of that Act, it
could,
mutatis mutandis
,
have relied on section 102(1) of the Act, which reads:
“
The parent of a pupil admitted
to a public school or centre, shall pay such tuition fees as the
Minister, with the concurrence of
the Minister of the Budget, may
determine.”
Dr.
van
Rensburg
conceded that, in
the circumstances, the liability of the parent there concerned would
have been the same, had the school been
a public school and not a
state-aided school.
The definition of “parent”
in section 1 of the Education Affairs Act is:
“’
parent’
in relation to a child, means the parent of such child or the person
in whose custody the child has been lawfully
placed.”
The decision in that case turned on
the construction to be placed on this definition. On behalf of the
school it was contended,
as it is in the case before us, that the
term “parent” should be construed as including a
non-custodian parent. As
in the present case, the magistrate found
against the school and dismissed its action. The school appealed.
The appeal is reported
as
Governing
Body, Gene Louw Primary School v. Roodtman
,
2004(1) SA 45 (C). It also went against the school.
Van
Heerden, J,
as she then
was, with
Griesel, J.
concurring, held at 57 B-C that:
“
I am of the view that the word
‘parent’ in s 102A(1) of the Act, read together with the
definition of ‘parent’
in s 1, must be interpreted so as
to encompass only a parent who has custody of the pupil in question
by operation of law, as also
the parent or other person in whose
custody the pupil has been placed by order of a competent court.”
The magistrate in the present case was
guided by the decision in the
Roodtman
case,
supra
.
The
Roodtman
decision has not, to my knowledge, been overruled or departed from by
any Court. If I understood him correctly, Dr.
van
Rensburg
did not mount a
serious attack on the correctness of the decision: he confined
himself rather to submitting, first, that the term
“parent”
in the Schools Act must be given a different meaning from that
ascribed to it by the Court in the Education
Affairs Act and,
secondly, that the
Roodtman
case would have to be decided differently today because of the
changes brought about to the law by the Children’s Act of
2005.
In the
Roodtman
case,
supra
,
van Heerden, J.
embarked on an exhaustive examination of the relevant provisions of
the common law and of numerous sections of the Education Affairs
Act,
as well as of other relevant reported decisions and authorities. At
51 E she said:
“
The principle of statutory
interpretation which requires a statute to be interpreted in
conformity with the common law rather than
against it has been
described as ‘the most fundamental of all the presumptions [of
statutory interpretation] since many of
the others are merely
axiomatic extrapolations of it’.”
At
54 D-F the learned Judge continued:
“
The above-mentioned presumption
that a statutory provision does not alter the existing law more than
is necessary applies not only
to the common law, but also to the
alteration of existing statute law (see
Devenish
(
op cit
at 71-2)). The common law and statutory framework set out above must
therefore form the background to the interpretation of s.
102A(1) of
the Act. Moreover, it should also be remembered that, where the
Legislature uses the same word in different sections
of the same
statute, it may reasonably be supposed that it would intend this word
to be understood in the same sense throughout
the statute, where no
clear indication to the contrary is given.”
At 55 E-F she said:
“
If, therefore, the word
‘parent’ in these sections were to be interpreted to
include a non-custodian parent, this would
amount to a radical
departure from the common-law principles set out above. It certainly
cannot be said that either the language
or the import of these
provisions support the conclusion that the intention of the
Legislature
was
to alter the common law in this manner. This being so, the word
‘parent’, as used in the above-mentioned articles,
must
be interpreted to mean the parent or other person who has custody of
a child, whether by operation of law or by order of a
competent
court.”
At 56 D-F she said:
“
As submitted by counsel for the
appellant, there would appear to be no indication that the word
‘parent’ as utilised
in s 102A(1) of the Act should be
interpreted to have a different meaning to the same word when used in
the other sections of the
Act discussed above. Indeed, if one were
to interpret the word ‘parent’ in s 102A(1) to include
the divorced non-custodian
parent, this would mean that the school
would be able to hold such non-custodian parent liable for the
payment of school fees,
not only in the absence of a contractual
relationship between the school and such parent, but also without
having to satisfy the
requirements of a claim based on some other
ground such as unjust enrichment or
negotiorum
gestio
. Such an
interpretation would also amount to a fairly radical departure from
the common-law principles set out above.”
With all of these
dicta
I find myself in respectful agreement, for the reasons expounded by
the learned Judge in her judgment.
Is the word “parent” to
be given a different meaning where it is used in the Schools Act from
that which it bears
in the Education Affairs Act, as contended by the
appellant?
In the first place, such an
interpretation would lead, it seems to me, to an anomalous result,
for the liability or otherwise
of the respondent to the appellant on
the agreed facts of this case would depend solely on whether the
appellant had sued him on
the applicable provisions of the Education
Affairs Act, on the one hand, or on those of the Schools Act, on the
other: under the
former legislation, as interpreted in the
Roodtman
case,
supra
,
the respondent would not be liable; whilst, under the Schools Act,
construed as the appellant would have us construe it, he
would. Dr.
van Rensburg
conceded, unless I misunderstood him, that the appellant could have
founded its action against the respondent upon either one of
these
two pieces of legislation: for the Education Affairs Act also applies
to a “public school”, meaning, in terms
of the definition
in section 1 thereof,
inter
alia
, a “primary
school .... established ... under section 12”; the only real
difference, on the face of the legislation,
between public schools
for the purposes of the Schools Act, on the one hand, and of the
Education Affairs Act, on the other, being
the identity of the person
or body responsible for establishing them, in the former case being,
in effect, the province and, in
the latter, the Minister as defined
in that Act. That the legislature could have intended to bring about
so anomalous a result,
viz. that precisely the same set of facts
could give rise to liability under one statutory provision, and
non-liability under the
other, appears to me to be highly unlikely.
Dr.
van
Rensburg
argued at one
point that the effect of the Schools Act was in some way to bring
about an amendment of the concept of “parent”
as it is
used in the Education Affairs Act. There is no express provision in
the Schools Act to that effect. Moreover, when this
Court handed
down its judgment in the
Roodtman
case,
supra
,
on the 29
th
September, 2000 the Schools Act had already been in force for nearly
four years: yet the Court did not find that the Schools Act
impinged
in any way upon the issue before it, viz. the interpretation to be
placed on the word “parent” for the purposes
of the
Education Affairs Act. Had the Schools Act had anything like the
effect which is now suggested on behalf of the appellant,
one would
have expected the eminent senior counsel who appeared for the
appellant in that case to have made the point, and the
Court to have
dealt with it. But no mention is made of the Schools Act in the
Roodtman
case. The implication is that it was not considered in that case
that the Schools Act had any bearing on the construction to be
placed
on the relevant provisions of the Education Affairs Act.
Secondly, it must be borne in mind
in interpreting the relevant provisions of the Schools Act for the
purposes of the present
case that none of the sections of the
Education Affairs Act which influenced this Court in construing the
latter in 2000 have since
been repealed or amended: they remain
unchanged on the statute book today. They are sections 1 (the
definition of “parent”),
42, 43, 44, 45, 47, 52, 55, 56,
57(2), 62(4), 102A, 104 and 106. It is an established principle of
construction that, in interpreting
a later statutory provision which
is
in pari materia
it must be presumed, unless the contrary appears clearly, that the
legislature did not intend to repeal or amend prior legislation.
As
Steyn
,
“
Uitleg van Wette
”,
5
th
Ed., says at 99-100:
“
Soos blyk uit
Kent
N.O. v. S.A. Railways and Harbours
,
1946 AD 405
moet ons ook wat ons wettereg betref by die uitleg van ‘n
latere wet begin met die veronderstelling dat dit nie die wetgewer
se
bedoeling is om die vroeëre wette te herroep of te wysig nie.
Daarby moet in gedagte gehou word dat by ontstentenis aan
‘n
uitdruklike bepaling, ‘n vorige wet alleen by noodsaaklike
implikasie gewysig kan word. ‘n Moontlike implikasie
is nie
voldoende nie.”
So, in
Kent,
N.O. v. S.A. Railways and Another,
1946 AD 398
Watermeyer,
C.J.
said at 405:
“
In considering that question,
it is necessary to bear in mind a well-known principle of statutory
construction, viz., that Statutes
must be read together and the later
one must not be so construed as to repeal the provisions of an
earlier one, or to take away
rights conferred by an earlier one
unless the later Statute expressly alters the provisions of the
earlier one in that respect
or such alteration is a necessary
inference from the terms of the later Statute. The inference must be
a necessary one and not
merely a possible one. In
Maxwell’s
Interpretation of Statutes
,
the principle is stated as follows (4
th
ed., p. 233):-
‘
The language of every enactment
must be so construed as far as possible as to be consistent with
every other which it does not in
express terms modify or repeal. The
law, therefore, will not allow the revocation or alteration of a
Statute by construction when
the words may have their proper
operation without it. But it is impossible to will contradictions;
and if the provisions of a
later Act are so inconsistent with, or
repugnant to those of an earlier Act that the two cannot stand
together, the earlier stands
impliedly repealed by the later.”
Also apposite, in my respectful view,
is the following statement made by
Maxwell
on the
Interpretation of
Statutes
, 7
th
Ed. at 265, which is quoted with apparent approval by
Steyn,
op. cit
., at 132:
“
It may be taken for granted
that the Legislature is acquainted with the actual state of the law.
Therefore, when the words of an
old statute are either incorporated
in, or by reference made part of, a new statute, this is understood
to be done with the object
of adopting any legal interpretation which
has been put on them by the courts. So, the same words appearing in
a subsequent Act
in pari
materia
, the presumption
arises that they are used in the meaning which has been judicially
put on them that, unless there is something
to rebut that
presumption, the new statute is to be construed as the old one was.”
So, also, is the following passage
from an English case which was quoted with approval by
Tindall,
J.A
. in
Ex
parte Minister of Justice: in re Rex v. Bolon
,
1941 AD 345
at 359:
“
(W)hen a particular form of
legislative enactment which has received authoritative
interpretation, whether by judicial decision
or by a long course of
practice, is adopted in framing a later statute, it is a sound rule
of construction to hold that the words
so adopted were intended by
the Legislature to bear the meaning which has been so put upon them.”
It is, of course, true that when the
legislature enacted the Schools Act in 1996 the Education Affairs Act
had not yet been interpreted
in the
Roodtman
case,
supra
.
But these two pieces of legislation are undeniably
in
pari materia
: they both
deal with,
inter alia
,
the provision and management of so-called public schools for the
education of children. Thus, the preamble to the Education Affairs
Act reads:
“
To provide for the provision
and control of education in schools, and matters connected
therewith”,
whilst that of the Schools Act reads:
“
To provide for a uniform system
for the organisation, governance and funding of schools; to amend
and repeal certain laws relating
to schools; and to provide for
matters connected therewith.”
And it is trite, I think, that,
generally speaking, when a Court construes a legislative provision it
does so
ex tunc
,
and not
ex nunc
:
it finds and pronounces upon what the intention of the legislature
was at the time when it enacted the relevant legislation,
and not at
some other time. For the purposes of the present matter it must be
assumed that the legislature become aware of the
decision in the
Roodtman
case,
supra
,
as soon as it was handed down on the 29
th
September, 2000. Parliament was, in effect, told by this Court on
that date what its intention had been when it enacted the Education
Affairs Act on the 21
st
June, 1988. If the effect of the judgment had been to cast an
unwelcome shadow, from the legislature’s point of view, on
the
interpretation which was thereafter to be placed on the definition of
“parent” in the Schools Act, in the sense
that it would
necessarily lead to a construction of that definition which would be
in conflict with Parliament’s intention
(as Dr.
van
Rensburg
would apparently
have us find), it was a shadow under which Parliament was apparently
content to live: for it did nothing to remove
the anomaly, if it was
an anomaly, for at least some six years, until, at best on Dr.
van
Rensburg
’s argument,
it enacted the Children’s Act on the 8
th
June, 2006. To me it seems to be far more likely that the
legislature did not find it necessary to do anything to remove the
“shadow” because it accepted that the interpretation
henceforth to be placed on the definition of “parent”
in
the Schools Act was in accordance with the interpretation which had
been placed on the corresponding definition in the Education
Affairs
Act in the
Roodtman
case,
supra
,
and that these interpretations were both consonant with the
legislature’s true intention. Had Parliament at any time
between
the 29
th
September, 2000 and the 8
th
June, 2006 wished to alter the situation as regards the Schools Act,
it could easily have done so by enacting an appropriate provision.
However, it did not do so.
In the
Roodtman
case,
supra
,
at 55 F and 57 C this Court construed the definition of “parent”
in the Education Affairs Act by reading it, in effect,
as if it
contained the words which appear below in square brackets:
“’
parent’ in
relation to a child, means the [custodian by operation of law] parent
of such child or the person [either a parent
or a person other than a
parent] in whose custody the child has been lawfully placed [by order
of a competent Court].”
As I have said, I find myself in
respectful agreement with everything which was said by the Court in
that case. Dr.
van
Rensburg
’s
contentions to the contrary notwithstanding, I can see no good reason
why words of similar import should not likewise be
read into the
definition of “parent” in the Schools Act, so that it
would, in effect, read:
“’parent’ means –
the [custodian by operation of law]
parent or guardian of a learner; [or]
the person [either a parent or a
person other than a parent] legally entitled to custody of a learner
[by reason of an order of
a competent Court] ....”
Such a construction would render the
definition in the Schools Act entirely in harmony with the
corresponding definition in the
Education Affairs Act, as interpreted
in the
Roodtman
case,
supra
.
On the other hand, to construe the definition in the Schools Act in
the radically different way contended for on behalf of the
appellant
would, in my view, be to do violence to the principles of
construction to which I have referred above.
For these reasons I am of the view
that the appellant cannot succeed with its first argument, and that
no fault can be found with
the decision of the magistrate on that
ground.
I turn now to consider the second
principal contention advanced on behalf of the appellant, that based
on section 21 of the Children’s
Act. Dr.
van
Rensburg
argued that,
notwithstanding the fact that, as I have said, this section came into
force only after this matter had been argued
and decided in the
magistrate’s Court, it had some application or bearing on the
matter, inasmuch as it brought about, he
contends, certain
fundamental changes to the law, and the issues between the parties
are, as he puts it, still “alive”,
inasmuch as this
appeal is pending. In my view there is no merit in these
submissions.
Dr.
van
Rensburg
did not attempt
with any great degree of conviction to persuade us that section 21 of
the Children’s Act was enacted with
retrospective effect. Nor
could he have succeeded in doing so. The relevant principle is to be
found stated as follows in
Steyn,
op. cit.
, where the learned
author says, at 82:
“
Hierdie vermoede (i.e. the
presumption against retrospectivity) word deur ons skrywers
geformuleer met herhaalde verwysing na die
bepaling in C 1.14.7 dat
dit vasstaan dat wette en verordeninge vorm verleen aan toekomstige
sake, en nie toegepas moet word op
wat in die verlede gedoen is nie,
tensy uitdruklik vir sake van die verlede sowel as vir nog hangende
sake voorsiening gemaak is.”
There is no provision in the
Children’s Act, express or implied, to the effect that any part
of it is to have retrospective
effect. On the contrary, as I have
said, section 315 of the Act provides that it “takes effect on
a date fixed by the President
by proclamation in the Gazette”.
In the case of section 21, that date was duly fixed at the 1
st
July, 2007, about a year after the Act had been passed on the 8
th
June, 2006. The provision in section 21(4) that section 21 applies
“regardless of (
sic
)
whether the child was born before or after the commencement of this
Act” is not a declaration of retrospectivity: it is
merely an
identification of some of the persons to whom the Act is to apply,
and nothing more. For this reason I am unable to
agree with
Prof.
Heaton
when she says, in
Davel and Skelton’s
“Commentary on the Children’s Act”
at 3-10 that -
“
....... the new rules apply
retroactively to children who were born before the coming into
operation of the Act”
if thereby she seeks to convey that
the Children’s Act applies retrospectively from some
unspecified date in the past, i.e.
before the 1
st
July, 2007. To my mind the position could not be more plain: as far
as section 21 is concerned, it came into operation only on
the 1
st
July, 2007, and it had no application before that date. It governs
situations and conduct only after that date.
According to the appellant’s
summons, its cause of action against the respondent arose at some
time between July, 2003 and
the date on which the summons was issued
(the 31
st
March, 2006). It is trite that the substantive law governing the
appellant’s claim against the respondent is that which
was in
force when the cause of action arose: at the very worst, from the
respondent’s point of view, it might possibly be
argued that it
was the law which was in force when the magistrate handed down his
judgment; but by no stretch of legal imagination,
it seems to me, can
it be said that the appellant’s claim can be founded on the
provisions of a statute which came into operation,
as in this
instance, only after the trial Court had heard and disposed of the
matter. The fact that the parties may still be in
dispute with each
other, inasmuch as the disappointed appellant has launched this
appeal against the magistrate’s order,
does not assist the
appellant, in my view. The function of this Court on appeal is to
consider whether or not the decision of
the magistrate was correct.
Dr.
van Rensburg
did not attempt to persuade us that the magistrate had erred in not
applying the then inoperative provisions of the Children’s
Act
to this matter: clearly he could not have been expected to do so -
indeed, it would have been manifestly wrong for him to
have done so.
I conclude that the appellant’s
contentions based on the provisions of section 21 of the Children’s
Act are without
foundation because that Act does not apply to the
facts of this matter. It may or may not be that that section brought
about certain
changes to the law as from the 1
st
July, 2007 which, had they applied to the present matter, might have
led to a different result. However, it is not necessary to
consider
that question, which is hypothetical and academic, and I express no
view on it.
In the result, the appeal is
dismissed.
_______________________
THRING, J.
I agree.
_______________________
McDOUGALL, A.J.