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[2024] ZAKZPHC 54
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T.M-S and Another v M and Another (9763/23P) [2024] ZAKZPHC 54; 2025 (2) SA 598 (KZP) (18 July 2024)
Lastest Amendment 28 November 2024
FLYNOTES:
CIVIL PROCEDURE – Open court –
Identity
of children
–
Review
proceedings involving highly sensitive issues implicating several
minor children – Rights and interests of minor
children
would be compromised if court file open to public – Court
file declared confidential – Best interests
of the children
and their rights to dignity and privacy should trump the right of
open court under
section
32
of
the
Superior
Courts Act 10 of 2013
.
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(KWAZULU-NATAL
DIVISION, PIETERMARITZBURG)
CASE
NO.: 9763/23P
NOT
REPORTABLE
In
the matter between:
T[...]
M[...]-S[...]
First Applicant
G[...]
S[...]
Second Applicant
and
M[...]
First Respondent
ADVOCATE
D[...] S[...]
Second Respondent
JUDGMENT
NOTYESI
AJ
Background
[1]
On 30 June 2023, the applicants launched an urgent interlocutory
application seeking for a remedy
to protect the identities of minor
children from disclosure to the public during the review proceedings
which are pending before
this Court. In the review application, the
applicants seek to set aside a ruling and recommendation by the
second respondent in
terms of which the minor children had been
expelled from the first respondent. The minor children were
implicated as perpetrators
and complainants in respect of certain
misconducts which were committed at school. The applicants’
contented that, because
there are minor children involved, the matter
should be confidential. The interim order was obtained on an urgent
basis. This is
an opposed hearing for final relief pending review.
[2]
The interim relief was granted in these terms –
‘
1.
1.1 That the main application herein shall be
carried on in open
court.
1.2
That the following limitations are to apply to the main application
and any reporting or disclosure
thereof:-
(i)
That the names of the Applicants may not be used and may only be
referred to as TS (First
Applicant) and GS (Second Applicant).
(ii)
That the names of the minor learners which appear in the application
and any annexure to the
affidavits may not be used except in the
unredacted version provided to the Court and the School.
(iii)
That the annexures to the founding papers may be withheld from the
Court File and provided in
a confidential bundle to the Court and the
Respondents at an appropriate time.
(iv)
That the pseudonyms of Minor
1, Minor 2
etc used in the redacted
version are the only method of reporting on this application that is
allowed.
1.3
In reporting on this matter outside of Court no person may use the
true names of the minors.
2.
An interim order be and is hereby granted in terms of paragraph
hereof.
3.
The costs of this application will be costs in the cause.’
[4]
The
above interim order was obtained by the applicants
ex
parte
[1]
.
The applicants had contended that the identity of the minors should
be withheld and not be published in any report. According
to the
applicants, a reference to the minors by unidentified codes (eg Minor
1, Minor 2
, and so forth) and the applicants by their initials would
suffice for purposes of identification in the review proceedings. The
first respondent had filed an answering affidavit and counter
application after the grant of the interim order.
[5]
The first respondent is in agreement that there ought to be
confidentiality put in place as minors
are involved. Whilst conceding
the need for confidentiality, the first respondent had contended that
the reliefs sought and obtained
by the applicants were inadequate for
the protection of the minors. In this regard, the first respondent
contended that the entire
court file should be declared confidential.
The counter application is opposed by the applicants.
[6]
On a proper conspectus, the parties are in agreement that there ought
to be measures of confidentiality
in the proceedings. The difference
between the parties is the extent of confidentiality to be afforded.
On the one hand, the first
respondent is obdurate that, in addition
to the interim relief, the file should be confidential, whilst, on
the contrary, the applicants
maintain that the interim relief
sufficiently protects the identities of the minors. At this stage,
the parties expressly agreed
that it is not necessary for the court
to determine whether the review proceedings should be held in open
court or in camera.
[7]
The application seeks to maintain a balance between section 28(2) of
the Constitution of the Republic
of South Africa, 1996
[2]
and
section 32
of the
Superior Courts Act 10 of 2013
.
[3]
Against
this background, I set out the basis of the application.
Material
facts
[8]
On 31 October 2022, the second respondent ruled that the applicants’
minor son, a former
learner at the first respondent, be expelled from
school. The ruling by the second respondent followed a finding that
the applicants’
minor son was guilty of certain serious acts of
misconduct. The charges against the applicants’ son and the
evidence upon
which he was ultimately found guilty, involved highly
sensitive issues, implicating several minor children, and disclosed
events
that would seriously infringe the physical integrity, dignity
and privacy of the minor children, either as perpetrators or as
complainants.
On the strength of the findings by the second
respondent, the minor child was expelled from school.
[9]
Unhappy with the rulings and recommendation(s) by the second
respondent and the decision of the
first respondent, the applicants
instituted the review proceedings. Following the launch of the review
proceedings, this interlocutory
application was filed for relief
regarding the protection of the identities of the minor children. The
first respondent also filed
a counter-application. In the counter
application, it seeks for the file to be declared confidential. The
basis of the counter
application is that the first respondent is an
institution with the responsibility to act in
loco parentis
in
respect of the minor children enrolled or previously enrolled by the
first respondent. Out of that responsibility, the first
respondent
has a duty to ensure that the identities of the minor children are
adequately protected in circumstances such as the
present case.
[10]
The main dispute between the parties is that the applicants insist
that there is no need for the court file
to be declared confidential
in view of the fact that pseudonyms for the minor children would be
used and that the confidential
documents would be kept out of the
court file until the hearing of the review. On the one hand, the
first respondent is of the
view that the notices and affidavits
reflect the parties’ names and that the court file is open to
the public. In such circumstances,
according to the first respondent,
there is a risk of disclosure of the minor children’s
identities.
[11]
In summary, the applicants’ minor child was found guilty of
serious counts of misconduct following
a disciplinary hearing
conducted by the second respondent. The serious misconduct in which
the applicants’ son engaged himself
in, involves other minor
children, both as perpetrators of the misconduct and as complainants.
Legal
framework
[12]
Section 32
of the
Superior Courts Act provides
, save as is otherwise
provided for in this Act or any other law, all proceedings ‘for
all proceedings in any Superior Court
to be carried on in open
court’, except in so far as the court may in special
circumstances, direct otherwise. In other words,
the default position
is that proceedings must be conducted in an open court. The
underlining purpose of proceedings being heard
in open court is to
ensure that justice is seen to be done. Both parties agree that the
section is in accordance with the provisions
of the Constitution.
Section 34 of the Constitution provides that –
‘
Everyone has the
right to have any dispute that can be resolved by the application of
law decided in a fair public hearing before
a court or, where
appropriate, another independent and impartial tribunal or forum.’
[13]
Our courts have consistently confirmed the importance of open court
hearings. Open court hearings confirm
the values of the Constitution
of transparency and openness.
[14] In
City of
Cape Town v South African National Roads Authority Ltd
[4]
Ponan JA stated-
‘
The
animating principle therefore has to be that all court records are,
by default, public documents that are open to public scrutiny
at all
times. While there may be situations justifying a departure from that
default position – the interests of children,
State security or
even commercial confidentiality – any departure is an exception
and must be justified. The high court’s
judgment, which is
inconsistent with that basic principle with regard to both the rule
and subrule, cannot be endorsed by this
court. Its interpretation of
the subrule creates a default rule of secrecy for all court records.
In addition, its application
of the rule limits the ability of
litigants to ensure publicity when they challenge the actions of the
State. In order meaningfully
to exercise the right to open justice,
members of the public (and the media) cannot simply be relegated to
the role of spectator.
While the gist of the matter may be apparent
to a person attending the hearing, it is only through an
understanding of the background
and issues raised on the papers that
proper comprehension and critical analysis of the proceedings, and
ultimately the court’s
findings, is possible. This is
especially so in motion proceedings, which are based on the
affidavits before the court and their
annexures, and where oral
evidence is not given in open court. This means that court challenges
to government action will be less
open than they currently are. Thus
where openness is most sorely needed – the consideration of
government conduct –
the high court judgment limits openness
the most. The blanket of secrecy it throws over previously open
proceedings undermines
the legitimacy and effectiveness of the
courts
.’
[15]
Unquestionably, the provisions of
section 32
of the
Superior Courts
Act is
the default position. The court proceedings,
should be conducted in line with that section and therefore, court
proceedings
should be open to the public, including court documents,
unless there are exceptions. Accordingly, in my view, the court is
empowered
and compelled, where there are competing rights in a
particular given case, to balance those rights proportionally, taking
into
account the facts specific of each case. In other words, the
court has a discretion to exercise and there can be no blanket
approach
that informs the assessment to be conducted by the court for
each and every set of facts.
[16] In
the
City
of Cape Town v South African National Roads Authority Limited
[5]
the Supreme Court of
Appeal confirmed that –
‘
The
principle of open justice has its limits of course and concomitantly
a commitment to open justice does not mean that there should
always
be unrestricted reporting, nor that there may not be good and genuine
reasons why information should sometimes be restricted.
But whether
that be so, falls to be determined on a case by case basis
.’
[17]
This court is acutely aware that the principle of ‘open courts’
dates back centuries ago and
it has been incorporated into our
Constitution.
[6]
The
reason is to ensure openness, accountability, transparency and ensure
public confidence to the court processes. There
is always a suspicion
of prejudice regarding proceedings that are conducted behind closed
doors and the allegations of prejudice
are always eminently
threatening from the disgruntled or unhappy litigant. All those
negative factors carry with them a threat
to the rule of law.
[18] In
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services: In re
Masetlha v President of the Republic of South Africa
[7]
at
para
40 –
‘
This systemic
requirement of openness in our society flows from the very founding
values of our Constitution, which enjoin our society
to establish
democratic government under the sway of constitutional supremacy and
the rule of law in order, amongst other things,
to ensure
transparency, accountability and responsiveness in the way courts and
all organs of state function.’ (footnote
omitted)
[19] It
may be added that the right to an open court hearing and the right to
report on it does not automatically
mean that court proceedings must
necessarily be open in all circumstances. There may be instances
where the interests of justice
in a court hearing dictate that oral
evidence of a minor or of certain classes of rape survivors or
confidential material related
to police crime investigation methods
or to national security be heard in camera. In each case, the
court will have to weigh
the competing rights or interests carefully
with the view to ensuring that the limitation it places on open
justice is properly
tailored and proportionate to the end it seeks to
attain. In the end, the contours of our constitutional rights
are shaped
by the justifiable limitation that the context presents
and the law permits.
[8]
[20] In
these proceedings, this court is required to strike a balance between
the provisions of
section 32
of the
Superior Courts Act and
section
28(2) of the Constitution. In essence, this court must weigh the
right of open court hearings and disclosures on one hand
and the
interests of minor children on the other hand. This is an important
balance that should always be maintained as the rights
are
constitutionally ordained. The limitation must therefore be justified
in terms of section 36 of the Constitution.
[21] In
Centre
for Child Law v Media 24
[9]
it was held –
‘
Finally, the right
to dignity in section 10, while related to the right to privacy in
section 14, is also infringed. In
De
Reuck
,
this Court held that “constitutional rights are mutually
interrelated and interdependent and form a single constitutional
value system.” The rights of children and their dignity and
privacy are inherently intertwined, as each child has their own
“individual dignity, special needs and interests”. To not
have control over how some of the most traumatic and intimate
moments
of a child’s life are shared with the public strikes at the
very core of the child’s dignity.’ (footnotes
omitted).
Contentions by the
parties
[22]
The case of the applicants is straightforward. Mr
Dickson,
who
appeared for the applicants, had contended that there was no basis
for the file to be declared confidential. In advancing the
submission, Mr
Dickson
had submitted that the interim relief
granted on 30 June 2023 had sufficiently protected the identities of
the minor children.
He conceded that as the review involved children,
a measure of protecting their identities was required. In this
regard, Mr
Dickson
submitted that the protection of the minor
children is accomplished by referring to the minors by unidentified
codes and the applicants
by their initials.
[23]
The submission was that the annexures will also remain intact and
unredacted and will only be provided to
the judge and that is a
sufficient safeguard of disclosure. Mr
Dickson
stressed, in
his submission, that the effect of the embargo on reporting the names
of the minors outside of court should settle
any doubt that there is
a risk of publicising the names of the minors. On Mr
Dickson
’s
submissions, the declaration of confidentiality of the court file
would render the file secret and therefore, amount to
a blanket
denial or absolute limitation of the right of open justice. In this
regard, Mr
Dickson
contended that section 28(2) of the
Constitution served to protect the identity of minors and it does not
extend to the school,
the school management or administration, the
second respondent nor to the activities at the school. The contention
was that the
public is entitled to know the activities at the school
or the conduct of the school.
[24] On
the contrary, Mr
Watt-Pringle
, relying on
Centre for Child
Law v Media 24
and the authority of
City v SANRAL
,
submitted that it has always been accepted by our courts that the
principle of open justice has its limits and it does not mean
that
there should always be unrestricted reporting and that each case must
be determined on its own specific merits. He contended,
in this
regard, that the court is therefore empowered and in certain
circumstances, compelled where there are competing rights
to balance
those rights proportionately taking into account the circumstances of
the case. As I understand the submission of Mr
Watt-Pringle
,
there can be no blanket approach that informs the assessment by the
court of the circumstances of each case.
[25]
The contention made on behalf of the first respondent is that the
rights and interests of the minor children
will inevitably be
undermined if the court file is not kept confidential and that risk
exists even with the implementation of measures
to safeguard the
anonymity of the learners concerned. Mr
Watt-Pringle
conceded
that the default position in terms of section 32 of the Superior
Courts is that court proceedings should be open to the
public,
although the court retains a discretion to vary the default position
in certain circumstances. The contention in this regard
was that the
discretion of the court in terms of section 32 is consistent with the
inherent power of the courts to regulate their
own processes in the
interest of justice.
[26] Mr
Watt-Pringle
submitted that in
circumstances such as the present case, the court should exercise its
discretion in favour of the minors’
rights to dignity and
privacy. In this submission, Mr
Watt-Pringle
relied on the authority
of
South
African Broadcasting Corporation Limited v National Director of
Public Prosecutions
[10]
where it was held –
‘
When courts
exercise the power to regulate their own process, it is inevitable
that that power will affect rights entrenched in
chapter 2 of the
Constitution. A court must regulate the way proceedings are conducted
and this will inevitably affect both the
right to a fair trial
(section 35 of the Constitution) and the right to have disputes
resolved by courts (section 34). Courts are
bound by the provisions
of the Bill of Rights and therefore bear a duty to respect those
rights. In exercising the power,
therefore, they must take care to
ensure that those rights are not unjustifiably attenuated.’
(footnote omitted)
[27]
The contention of the first respondent is that should the file not be
declared confidential, there exists
a real risk that the identities
of some or all of the minor children who were involved in the
incidents that form the subject matter
of the review, either as
perpetrators or as complainants, would inevitably have their
identities disclosed to their detriment.
The submission is that the
contents of the file would be distributed via media, which may
include social media and if that happened,
may leave an irreversible
or permanent mark on the dignity and the reputation of the minors
concerned.
Analysis and
evaluation of the submissions
[28] I
should commence my analysis and evaluation of the parties’
submissions by making reference to a statement
made by Mhlantla J in
Centre
for Child Law v Media 24
,
[11]
–
‘“
Stories
matter. Many stories matter. Stories have been used to
dispossess and to malign. But stories can also
be used to
empower, and to humanise. Stories can break the dignity of
people. But stories can also repair that broken
dignity.”
This case is about real life stories, in particular, about children.
It is about the way in which these are
told, who decides when this
should be done, and the numerous effects of storytelling’
(footnote omitted)
[29]
The subject matter of the review proceedings involve highly sensitive
allegations. To this end, the applicants,
on their own accord, had
approached the court for a remedy to protect the identities of the
minor children. The misconduct involves
minor children, both as
perpetrators and as complainants. The nature of the misconduct that
forms the subject of the review is
particularly sensitive, invoking
the rights to dignity, privacy, and bodily and psychological
integrity. I proceed on the basis
that the Constitutional rights of
the minors is what is at stake. I also accept that court proceedings
should, in general, be conducted
in openness. The rights of the
minors implicated in the review, are contained in the Bill of Rights.
The court should be careful
in assessing limitation of the right to
dignity and privacy. The infringement of the right to dignity may
have permanent adverse
consequences, especially to a minor. The
circumstances of this case and the allegations which form subject of
the review, are highly
sensitive.
[30]
Significantly, the first respondent has averred that the nature of
the first respondent’s school community
is such that even where
the names of specific learners may be redacted from the record, their
identities will be easily ascertainable,
and the disclosure of the
information affecting their dignity, privacy, and bodily and
psychological integrity will be inevitable.
In such circumstances,
the relief sought by both parties regarding protection of identities
of the children would be rendered futile
if their identities were to
be revealed in one way or the other.
[31]
The parties agree that protection of disclosure of the minor
children, is required. I also agree. The parties
only lock horns on a
narrow issue of whether or not the file must be declared
confidential. The court file is part of court proceedings.
The
parties have correctly submitted that the default position is
section
32
of the
Superior Courts Act. In
terms of the section, all
proceedings in any superior court must, except insofar as any such
court may, in special cases, otherwise
direct, be carried on in open
court. There is an exception which is insofar as any such court may,
in special cases, otherwise
direct. These special cases are not
specified and the power to deviate from hearing matters in open court
is left to the judge
concerned. In my view, departing from having
proceedings open to the public, requires sufficient justification and
in this regard,
the court must set out the reasons why the
proceedings cannot be open to the public and should set out the
factors that it has
taken into account.
[32] In
this view, I am fortified by various provisions in the
Constitution
[12]
which require
that the court proceedings should be open to the public. The
authorities in case law are in support of the proposition
that court
proceedings should be open to the public.
[13]
[33] In
SABC Ltd
v NDPP
[14]
it was stated –
‘
Courts should in
principle welcome public exposure of their work in the court room,
subject of course to their obligation to ensure
that proceedings are
fair. The foundational constitutional values of accountability,
responsiveness and openness apply to the functioning
of the judiciary
as much as to other branches of government. These values underpin
both the right to a fair trial and the right
to a public hearing (ie
the principle of open court rooms). The public is entitled to know
exactly how the judiciary works and
to be reassured that it always
functions within the terms of the law and according to time-honoured
standards of independence,
integrity, impartiality and fairness.’
[34] In
this case, minor children are involved. The parties agree that the
minor children should be afforded protection.
The applicants do not
dispute that the charges against the applicants’ son, and the
evidence on which he was found guilty,
involved highly sensitive
issues, implicate several minor children and disclose events that
seriously infringe the physical integrity,
dignity and privacy of the
minor children. I do not doubt that in these circumstances, the
rights and interests of the minor children
would be compromised if
the file is open to the public and not kept confidential. The best
interests of the minor children involved
demand that more effective
measures to safeguard the anonymity of the minor children are indeed
required.
[35] In
Centre
for Child Law v Media 24
,
[15]
the court held –
‘
I do not wish to
deny the importance of public interest in respect of open justice,
but I underscore the
distinction
between public interest and what is interesting to the public
.
There is indeed a difference between the two; the former is attached
to a legitimate and genuine interest, one founded on fact
and one
that contributes towards the public’s constitutional right to
be informed.’ (footnote omitted, my emphasis)
[36] I
have considered the cases of
Centre
for Child Law v The Governing Body of Hoerskool Fochville
,
[16]
AB v
Pridwin Preparatory School
,
[17]
J v
Director General: Home Affairs
,
[18]
MEC for
Education, KwaZulu-Natal v Pillay
,
[19]
and
Le
Roux v Dey
.
[20]
These cases confirm the importance of the best interests of the minor
child, taking into account the right to dignity, privacy
and physical
integrity. I do not understand the cases as limiting the right to
privacy in cases where minor children are involved.
I disagree with
Mr
Dickson
’
s
submission that the relief sought by the first respondent is
inconsistent with these cases. The emphasis of the cases is that
each
case must be dealt with on its own merits. The import thereof is that
the court retains its discretion in the application
of
section 32
of
the
Superior Courts Act. The
importance of the court’s
discretion is that the court will be placed in a better position to
evaluate the adverse effects
of public hearing on the other rights of
the minors which are guaranteed in terms of the Constitution. Section
28(2) is instructive
that a child’s best interests are of
paramount importance in every matter concerning the child.
[37] As
I understand, the parties have not decided on the question of whether
the main review should be heard
in open court. Taking into account
that no decision has been made regarding the hearing of the main
review and the fact that both
parties agree that the identities of
the minor children should be protected, I am inclined towards
exercising the discretion of
the court in favour of not disclosing
the court file. I am aware that the contents of the court file may
easily be accessed and
once that happens, the risk of disclosing the
identities of the minor children is very high. I have no doubt that
the incident
that had occurred at the school is already known amongst
the school community. The evidence is that members of the school are
very
close and that intensifies the risk of the identities of the
minor children being disclosed. Mr
Dickson
had submitted that
section 28(2) of the Constitution served to protect the
identities of minors in circumstances such as these
and that it does
not extend to the school, its management, or arbitrator, nor the
activities at the school. I accept this submission,
however, the
issue, in my view, is whether or not the rights created by section
28(2) of the Constitution would be best served
by upholding the
contention that the file should be kept confidential. In coming to
that conclusion, the court is obliged to evaluate
the circumstances
of the present case on its own merits and demerits. Only after such
an evaluation, would this court be in a better
position to determine
whether confidentiality should prevail over the openness of court
proceedings.
[38] My
view of the matter is that the confidentiality of the file would not
unduly limit the right to open justice
and on the facts of this case,
confidentiality of the file would not be contrary to the proper
administration of justice and the
constitutional values. I have taken
into account the right to dignity and the right to privacy of the
minor children. I have also
considered the fact that other minor
children are involved in the matter and that they have not been
afforded a hearing in circumstances
where there is a real risk that
their privacy, dignity and physical integrity would be compromised.
All these factors, when considered
in the circumstances of this
particular case, do justify the confidentiality of the file. In
Teddy Bear Clinic for Abused Children v Minister of Justice and
Constitution
it was held –
‘
Children
are precious members of our society and any law that affects them
must have due regard to their vulnerability and their
need for
guidance. We have a duty to ensure that they receive the support and
assistance that is necessary for their positive growth
and
development
.’
[39] In
Centre
for Child Law v Director of Public Prosecutions, Johannesburg
,
[21]
the Constitutional Court opened its judgment with the above from
Teddy
Bear Clinic
,
and added:
‘
A
child is precious and deserves special protection under the law. The
drafters of our Constitution recognised this, and that is
why the
rights of the child are enumerated in section 28 of the Constitution.
Section 28(2) states that “[a] child’s
best interests are
of paramount importance in every matter concerning the child”.
Beyond the Constitution, international
law also places strong
emphasis on the rights of the child as well as her best interests
.’
[40] On
the facts of this case and after careful consideration of the nature
of the allegations contained in the
review application which are
common cause, I am satisfied that it is in the interest of justice
and would serve the best interests
of the minor children if the
review file is declared confidential at this stage. It remains open
to the parties to decide on whether
the hearing of the review
application would be on an open court in terms of section 32 of the
Act. The review court would be best
to decide regarding that
question. It suffices for this Court to mention that the allegations
involved against the minor children
are very serious and I can safely
say that the dignity and privacy of the minor children are likely to
be adversely affected if
the matter is not carefully handled. On that
basis alone, I am inclined to grant the relief sought in the counter
application.
I will also confirm the rule nisi issued by this Court.
[41] I
am satisfied that both parties have made out a case for the
protection of the identity of the minor children
and it would be in
the interest of justice to grant the relief.
Findings
[42]
The applicants accept that the protection of the minor children would
be achieved by referring to them by
identifiable codes such as Minor
1, Minor 2
and so forth and the applicants by their initials. I
agree. Whilst the applicants dispute the declaration of the file to
be confidential,
there are no reasons advanced by the applicants
other than reliance on the provisions of section 32 of the Act. I do
not agree.
My view is that section 28(2) of the Constitution, the
right to dignity of the minor children, and their right to privacy,
should
trump the right of open court under section 32. In my view,
such limitation would accord with the values as the spirit of the
Constitution.
For all these reasons, the relief in the counter
application would be granted. I am satisfied with the evidence
presented
that it would be in the interest of justice and the best
interest of the minor children, to grant a relief for the file to be
declared
confidential.
Costs
[43]
The general principle is that costs should follow the event. In the
present case, both parties have achieved
success. Both parties have
agreed that there was a need for the protection of the identities of
the minor children. In such circumstances,
it would not be desirable
to mulct any of the parties with an order of costs. The submissions
by both counsels were mostly helpful
in the outcome of these
proceedings. Accordingly, I am not inclined to award a costs order.
The result would be that each party
should pay its own costs. The
order that I intend issuing is consistent with the relief that both
parties have sought.
Order
[44] In
the result I make the following order –
1.
The rule nisi issued
on 30 June 2023, save for paragraph 1.1, is confirmed, incorporating
the order below.
2.
The court file in the
review application and other incidental applications or any related
applications, is declared confidential;
3.
The court file and
its contents shall be retained in the Chief Registrar’s office
in a secured place of safety and may only
be accessed by the parties
for purposes of filing court documents, pagination and indexing and
preparation for the hearing of the
review;
4.
The annexures to all
affidavits filed by the parties, as well as the contents of the rule
53 record, will be withheld from the court
file and will be provided
in a confidential bundle to the court hearing the review in the main
application;
5.
The identities of the
parties to this application, or any facts which may cause them to be
identified, shall not be published and/or
made public:
(a)
The names of the applicants may not be used and the applicants will
be referred to only as TS
(in respect of the first applicant) and GS
(in respect of the second applicant);
(b)
All minor children (including those who were minor children at the
time that the relevant incidents
arose) may only be referred to where
necessary through the use of the pseudonyms minor 1, minor 2, etc in
accordance with a schedule
to be agreed to between the parties;
(c)
This applies to the parties and anyone in their employ to not
intentionally or negligently allow
the order to end up in public
hands and/or cause the identities of the applicants and/or the minor
children to be known.
6.
The parties and
anyone in their employ are prohibited from intentionally or
negligently allowing the pleadings or their contents
to end up in
public hands and/or cause the identities of the applicants and/or the
minor children to be known;
7.
Each party shall pay its own costs.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the Applicants:
AJ
Dickson SC
Attorneys
for the Applicants:
PKX
Attorneys
Pietermaritzburg
Counsel
for the First Respondent:
Mr
Craig Watt-Pringle SC
with
Nikki Steyn
Attorneys
for the First Respondent:
Redfern
& Findlay Attorneys
Pietermaritzburg
Attorneys
for the Second Respondent:
No
appearance
Date
Heard:
2 May
2024
Date
Delivered:
18
July 2024
[1]
‘
Ex
parte’ is a Latin legal term that means ‘from one side
only’ or ‘by or for one party’. In legal
contexts,
it refers to a proceeding or application where only party is present
or represented, and the other party is not notified
or represented.
– Oxford Dictionary
[2]
Section 28(2) of the Constitution reads as follows: ‘A
child’s best interests are of paramount importance
in every
matter concerning the child.’
[3]
Section 32
of the
Superior Courts Act 10 of 2013
states: ‘
Save
as is otherwise provided for in this Act or any other law, all
proceedings in any Superior Court must, except in so far as
any such
court may in special cases otherwise direct, be carried on in open
court
.’
[4]
City
of Cape Town v South African National Roads Authority Ltd and others
[2015]
ZASCA 58
;
2015 (3) SA 386
(SCA);
2015 (5) BCLR 560
(SCA) para 47
(
City
v SANRAL
)
.
[5]
City
v SANRAL
para
46.
[6]
Financial
Mail (Pty) Ltd v Registrar of Insurance and others
1966
(2) SA 219
(W) at 220H-221A (
Financial
Mail
);
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services: In re
Masetlha v President of the Republic of South Africa
and another
[2008]
ZACC 6; 2008 (5) SA 31 (CC); 2008 (8) BCLR 771 (CC).
[7]
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services: In re
Masetlha v President of the Republic of South Africa
and another
[2008]
ZACC 6
;
2008 (5) SA 31
(CC);
2008 (8) BCLR 771
(CC) (
Independent
Newspapers
).
[8]
Independent
Newspapers
para
45.
[9]
Centre
for Child Law and others v Media 24 Limited and others
[2019]
ZACC 46
;
2020 (4) SA 319
(CC);
2020 (3) BCLR 245
(CC) para 50
(
Centre
for Child Law v Media 24
).
[10]
South
African Broadcasting Corporation Ltd v National Director of Public
Prosecutions and others
[2006]
ZACC 15
;
2007 (1) SA 523
(CC);
2007 (2) BCLR 167
(CC) para 37 (
SABC
Ltd v NDPP
).
[11]
Centre
for Child Law v Media 24
para.
[12]
Sections
16 and 34 of the Constitution and various other sections from the
Constitution.
[13]
City
v SANRAL
;
Independent
Newspapers
;
Centre
for Child Law v Media 24
;
Financial
Mail
.
[14]
SABC
Ltd v NDPP
para
32.
[15]
Centre
for Child Law v Media 24
para
100.
[16]
Centre
for Child Law v The Governing Body of Hoerskool Fochville
[2015] ZASCA 155
;
2016
(2) SA 121
(SCA);
[2015] 4 All SA 571
(SCA).
[17]
AB and
another v Pridwin Preparatory School and others
[2020] ZACC 12; 2020 (5)
SA 327 (CC); 2020 (9) BCLR 1029 (CC).
[18]
J and
another v Director General, Department of Home Affairs and others
[2003] ZACC 3; 2003 (5)
SA 621 (CC); 2003 (5) BCLR 463 (CC).
[19]
MEC for
Education: Kwazulu-Natal and others v Pillay
[2007] ZACC 21; 2007 (2)
SA 106 (CC); 2007 (3) BCLR 287 (CC).
[20]
Le Roux
and others v Dey
[2011]
ZACC 4; 2011 (3) SA 274 (CC); 2011 (6) BCLR 577 (CC).
[21]
Centre
for Child Law v Director of Public Prosecutions, Johannesburg and
others
[2022]
ZACC 35
;
2022 (2) SACR 629
(CC);
2022 (12) BCLR 1440
(CC) para 2
(
Centre
for Child Law v DPP
).