About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2015
>>
[2015] ZAWCHC 120
|
|
Justice Alliance of South Africa and Another v Minister of Social Development, Western Cape and Others (20806/2013) [2015] ZAWCHC 120; [2015] 4 All SA 467 (WCC) (31 August 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 20806/2013
DATE:
31 AUGUST 2015
REPORTABLE
In the matter
between:
THE JUSTICE
ALLIANCE OF SOUTH
AFRICA
......................................................
First
Applicant
THE GOVERNING
BODY OF OTTERY YOUTH CARE
AND EDUCATION
CENTRE
....................................................................................
Second
Applicant
And
THE MINISTER OF
SOCIAL DEVELOPMENT, WESTERN CAPE
….....….....
First
Respondent
THE DEPARTMENT OF
SOCIAL DEVELOPMENT,
WESTERN
CAPE
....................................................................................................
Second
Respondent
THE MINISTER OF
EDUCATION, WESTERN CAPE
.......................................
Third
Respondent
THE DEPARTMENT OF
EDUCATION, WESTERN CAPE
..............................
Fourth
Respondent
THE MINISTER OF
SOCIAL
DEVELOPMENT
....................................................
Fifth
Respondent
THE DEPARTMENT OF
JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
........................................................................................................
Sixth
Respondent
SCHOOL GOVERNING
BODY OF DIE BULT
JEUGSENTRUM IN
GEORGE IN THE EDEN AND CENTRAL
KAROO EDUCATION
DISTRICT
.......................................................................
Seventh
Respondent
SCHOOL GOVERNING
BODY OF EUREKA
JEUGSENTRUM IN
GROOT EILAND IN THE CAPE
WINDELANDS
EDUCATION
DISTRICT
............................................................
Eighth
Respondent
SCHOOL GOVERNING
BODY OF WELLINGTON
YOUTH CENTRE IN
WELLINGTON IN THE CAPE
WINELANDS
EDUCATION
DISTRICT
.................................................................
Ninth
Respondent
CORAM:
SALIE-HLOPHE, J
HEARD: 24 June
2015
DELIVERED: 31
August 2015
COUNSEL FOR
APPLICANTS: Adv. I.Jamie SC and B.L.Studti
COUNSEL FOR 1st
to 5th RESPONDENTS: Adv. A.Katz SC and M.Adhikari
JUDGMENT
DELIVERED ON 31
AUGUST 2015
SALIE-HLOPHE, J:
In a land withered by drought and
hunger, a place where hope and opportunity was hard to find, William
Kamkwamba wrote:
“After a few days of rain, the
seedlings will push through the soil and unfold their tiny leaves.
Two weeks later, if the
rain is still good, we then carefully apply
the first round of fertilizer, because each seedling requires love
and attention like
any living thing if its going to grow up strong.”
(excerpt from the book: The Boy Who
Harnessed the Wind: Creating Currents of Electricity and Hope).
Our children are the seedlings of our
country’s next bloom. Nurturing and protecting each child,
however different their
challenges may be, is our responsibility to
our land and our Constitution.
INTRODUCTION
1] This is an application for
declaratory and mandatory relief concerning the proper interpretation
of certain sections of the Children’s
Act 38 of 2005 (“the
Children’s Act”), and the implementation thereof, with
respect to the following child and
youth care centres (“CYCC’s”)
in the Western Cape Province:
1.1 Die Bult Jeugsentrum in George in
the Eden and Central Karoo Education District (‘Die Bult’);
1.2 Eureka Jeugsentrum in Groot Eiland
in the Cape Winelands Education District (‘Eureka’);
1.3 Ottery Youth Centre (also known as
Ottery Youth and Education Centre) in Ottery in the Metro South
Education District (‘Ottery’);
and
1.4 Wellington Youth Centre in
Wellington in the Cape Winelands Education District (‘Wellington’).
2] Prior to 31 December 2000, Die Bult,
Ottery and Wellington were established as schools of industries and
Eureka was established
as a reform school. On 31 December 2000, the
Western Cape Government closed all former schools of industries and
reform schools
in the Province, but retained, inter alia, Die Bult,
Ottery, Wellington and Eureka by re-establishing them in terms of s18
of the
Western Cape Provincial School Education Act No.12 of 1987
(‘the Western Cape Schools Act’), that is, as public
schools.
It is common cause that the centres nonetheless continued to
operate and perform the same functions as they did before 31 December
2000. After this date the centres continued to receive children and
until 1 April 2010, which marks the commencement of the Children’s
Act, the relevant provisions of the Child Care Act, 1983 remained in
force. During 2013 the Western Cape government embarked on
a process
of closures or otherwise termed “repurposing” of these
centres in order to utilise the current physical infrastructure
of
these centres to serve as schools for children with special
educational needs in terms of the Schools Act. The Applicants seek,
inter alia, to prevent the repurposing of these four centres. It is
their argument that any decision to close or repurpose can
only take
place once (at the very least) strategies are in place.
3] The term “reform school”
was defined in the 1983 Children’s Act as a school maintained
for the reception, care
and training of children sent thereto in
terms of the
Criminal Procedure Act 51 of 1977
, or transferred
thereto under the 1983 Children’s Act whilst “school of
industries” was defined to mean a school
maintained for the
reception, care, education, and training of children sent or
transferred thereto under the 1974 Children’s
Act. Generally
speaking the former is a residential institution where children who
have been sentenced by courts are placed and
children placed in the
latter must have been declared by a Children’s Court as being
in need of care.
BACKGROUND FACTS:
4] John Jackson Smyth, (“Smyth”),
deponent to the founding affidavit stated that in June 2010 the
Governing Body of
Ottery, through its members and persons assisting
it, attempted to obtain clarification concerning the future of Ottery
Centre.
In particular they sought to obtain the interpretation
placed on the relevant provisions of the Children’s Act by the
Provincial
Minister of Social Development, the Department of Social
Development and the Department of Education. In particular they
wanted
to know how the said departments would intend to implement the
provisions of the Children’s Act, with specific reference to
section 196.
He stated further that attempts to obtain the desired
clarification were not met with a clear response or were met with
mixed
messages as would appear from the correspondence exchanged
between them. He attributed this impasse as a result of the fact
that
there was no coordinated approach to the interpretation and
implementation of the Children’s Act in respect of child and
youth care centres such as Ottery. The lack of disclosure or clarity
on the part of the Respondents was most notable. He illustrated
it
by way of the fact that Ottery Centre had as late as September 2012
launched three restored hostels at its family open day,
using funds
raised in the amount of approximately R500 000. This launch was
attended by the Provincial Minister of Social Development.
It was,
however, shortly thereafter in November 2012 that the intentions of
the Departments of Social Development and Education
respectively
began to emerge in the form of a presentation by the Ms. Leana Goosen
of Social Development and which was also presented
at a Child Justice
Forum. Emanating from these presentations it was clear that the
Department of Social Development would upgrade
the facilities already
maintained by it, including traditionally secure care facilities
designed for the detainment of awaiting
trial and sentenced youth,
for the purposes of housing all types of children requiring all types
of residential care programmes.
Furthermore, it envisaged complying
with its obligations in terms of the Children’s Act by
preventing admission of children
to facilities such as Ottery, from
30 November 2012 onwards. Subsequent thereto all children in such
facilities would be transferred
to other child and youth care
centres, most of which are high security facilities and
geographically far removed from the relevant
communities. Smyth
submitted that this action amounted to an unlawful directive given
the obligations placed on Social Development
and the Education
Department in terms of
Section 196
of the Children’s Act.
5] On 8 February 2013, a letter was
addressed by Magistrate Denilia Diana Leppan, presiding officer of
the Wynberg Children’s
Court in response to closure of the
CYCC’S, the contents of which were set out and quoted in part
in the founding affidavit.
Her concerns were addressed in some
detail, in particular the repurposing of the former schools of
industries without a process
of consultation with the role players
involved including the children placed there. She was also concerned
that placements were
done without a needs assessment and consequently
without proper consideration of what is in the best interests of the
relevant
children. She further lamented the concerns that the
closure of Ottery and the creation by the Department of Social
Development
of placement facilities outside the Wynberg and Cape Town
Area would result in the Wynberg Children’s Court being left
with
no facilities in that district for the suitable placement of
children. Moreover that it was not located geographically close to
the children’s family. This, she said, would be in contrast to
what the legislator had ordained in the Act which requires
that a
child found in need of care be placed as close to his or her family
to promote family contact and ultimately reunification.
She also
expressed the view that placing all children into a “one size
fits all” facility should be guarded against.
She was
particularly concerned about a system that provided for placing
children in need of care, who are not an abscondment risk,
to be
caged with juvenile criminal offenders. She advocated strongly for
separate residential facilities for children in need
of care and
protection to that of children in secure care facilities. In
essence, children found to be in need of care were now
being sent to
“Social Development” facilities: Horizon, Outeniqua,
Vredelus and Clanwilliam, all of which are structured
and operated as
high security facilities with a cold and harsh atmosphere not
conducive to the social conditioning of children
in need of care.
6] Smyth gave an account of his visit
in November 2013 to Horizon CYCC which is one of the facilities where
children in need of
care have since been transferred to. He
described the harsh conditions, stringent security checks, security
control room, dormitories
that are locked and barred every night
after bedtime, all of which circumstances in every respect were akin
to a prison. Whilst
he was assured that there is no mixing of the
different groups of children he found it difficult to understand how
this could work
in practice. All children appeared to him to have
been treated similarly and there appeared to be very little
differentiation
between the children placed at the facility because
they are in need of care and protection, and those placed there
because of
criminal activity. In his view, it is unlikely that such
facilities will provide residential care programmes which are
appropriately
suited to children in need of care and protection. He
went on to state that that it is not in the best interests of
children found
in need of care to be placed at the now designated
secure care centres at Outeniqua, Vredelus, Horizon and Clanwilliam.
In contrast
to his experience and observations from his visit at
Horizon, a visit to Ottery Centre presented children who were not
locked away
and that the centre was more of a homely school than a
prison.
7] The functioning of the Ottery Centre
and concerns of the future of its children were further described in
a supporting affidavit
by Mr. Moosa Mahadick, (“Mahadick”)
the principal of the centre. Mahadick set out a history and
description of the
centre and the growth that the centre had shown
over the years, with the focus moving from control and punishment to
one of education
by creating an environment which is least
restrictive. It is geared to accentuate the positive and works with
the weaknesses that
children bring from challenging life experiences.
The centre prioritises the reintegration of the child into his or
her family
and community including trips to ensure that children have
contact with their families and visits by children of parents in
prison.
He is of the view that the closure of a centre such as
Ottery would gravely disadvantage children who are in need of care
and
protection. Repurposing of these centres would result in the
automatic reduction of the currently available residential care
facilities
in the Western Cape. Children with different needs would
be inappropriately placed together. He added that the link between
school,
community and children in need of care ought not to be
supplanted by a correctional and penal model of disciplinary care.
It requires
a dignified model of care practices and education,
appropriate to the barriers to learning that such children encounter
and face
daily. Ottery Centre only served children in need of care
(not children who were sentenced or awaiting trial or sentencing)
until
it experienced its first systemic challenge in 2010 when it
received twenty children sentenced/diverted children. He indicated
that although they had done their best to separate the different
children, it proved most challenging in that those who are either
sentenced or awaiting trial exhibit subcultural rituals and norms of
youth that would result in the induction of children into
gangs. They
view violence as an acceptable method to exercise power and control
over the vulnerable and weak. He supported the
argument that it can
never be in a child’s best interest to place children in need
of care and protection with children who
are sentenced, diverted, or
awaiting trial or sentencing.
8] Mr. Robert Macdonald, (“Macdonald’)
Acting Head of the Department for the Western Cape Provincial Social
Development,
the second respondent, deposed to the answering
affidavit for the first to fourth respondents. He stated that were
this court
to grant the relief sought, it would not be in the best
interests of the children affected by the application. Macdonald
added
that there are separate facilities to offer programmes and
accommodate the children found to be in need of care and protection
on the one hand and on the other hand children who are awaiting trial
or have been sentenced. He further explained that the Centres
in
question were closed by Provincial Proclamation dated 16 September
2000, issued in terms of Section 18 of the Western Cape Provincial
School Education Act 12 of 1997. The closures took effect on 31
December 2000. Die Bult, Eureka and Wellington had been in a
process
of closure and winding down of operations since 2000. He added that
the Centres were not taking any new children who have
been sentenced
or referred by the courts as these Centres have lawfully been closed
and are to be repurposed as schools for children
with special
educational needs. He added that the Centres are currently
registered as public special schools under the auspices
of the
Western Cape Education Department (“WCED”). The WCED had
determined that it would be an appropriate use of
available resources
to utilise the infrastructure of the centres to provide schooling
facilities for children with special educational
needs. He further
stated that “the decision to repurpose the centres involved a
complex weighing of competing needs and
priorities against the
available resources in both the areas of child and youth care
services and special needs education.”
9] Macdonald pointed out that after
negotiations, subsequent to the launch of this application, the
Western Cape Provincial Government
undertook to ensure that Ottery
fully complies with the Children’s Act and that it is able to
be fully registered as a child
and youth care centre within a period
of 12 months from the date on which an agreement to this effect could
be reached with the
Applicants. This undertaking includes providing
continued regulatory oversight and support to Ottery. It also
undertook to regularly
monitor and visit the Centre as required by
the Children’s Act; facilitate admissions to Ottery through its
centralized admissions
office; making sufficient budgetary and human
resources available to sustain the current operations as well as
effect the necessary
improvements to the infrastructure to ensure
that it meets the requirements of the Children’s Act. It
further undertook
not to take any decision to close or repurpose
Ottery for a period of 12 months and to provide at least 12 months’
notice
to all affected stakeholders, including the Applicants, in the
event that such decision is made in the future. He denied that
children who are not sentenced, awaiting trial or placed by a court
as the result of behavioural problems or criminal behaviour
have been
placed at Outeniqua, Vredelus, Horizon and Clanwilliam secure care
centres. Macdonald went on to explain the absence
of a provincial
strategy for the reason that the latter is dependent on a national
strategy having been developed first. Once a
national strategy had
been made available, his department would require a period of 4
months to finalise the development of the
provincial strategy.
10] Mr. Coceko Pakade, (“Pakade”)
the Director General of the National Department of Social
Development, the fifth respondent,
set out in his answering affidavit
that the National Minister was in the process of compiling a national
strategy. He added that
a copy thereof would be placed before this
Court, presumably at the hearing of this matter. Insofar as the
national strategy had
not been finalised for submission by 31 July
2014 as per the order of this court on 20 March 2014, Pakade set out
in his affidavit
that a draft national transformation strategy was in
circulation and needed to be costed for the implementation process.
Various
national workshops were held to guide the development of the
transformation strategy. Initiation of the transformation process
gave rise to various challenges in respect of the transfer of
financial, human and capital resources and the determination of the
number of former schools of industry and reform school to be
transferred from the Provincial Departments of Education as well as
Social Development. According to him the National Department was in
the process of developing a model to assist it in the determination
of the geographical spread of needs which would include a
determination of travelling distance to the various facilities, the
demographic profile of facilities, accessibility requirements as well
as the requirements in terms of size, number and capacity
of
facilities. Various challenges had been identified. According to
him the final implementation plan will need to take into
account the
identified challenges such as the limited resources that impact on
the sufficient spread of residential care programmes
and the
appropriate placement options and access to the available services
for children. In conclusion, he stated that the implementation
plans
would be guiding the transformation process. He envisaged that the
National Strategy would be finalized by the end of September
2014.
11] In reply, Smyth stated that an
undertaking by the Respondents in regard to Ottery Centre remained
vague and given previous settlement
attempts which appear to have
been unsuccessful, it remains necessary for this court to determine
the correct manner in which to
regulate the continual existence of
Ottery. Furthermore, the budget allocated for the Ottery Centre was
cut by approximately R800
000 for the 2014 financial year resulting
in a financial and humanitarian crisis which risked a real prospect
that Ottery Centre
would be unable to meet the minimum standards of
caring for the basic needs of the children entrusted to its care.
The Centre
had not received a staff establishment for the last two
years which is crucial in planning delivery to the learners. He
placed
into dispute and denied the first to fourth respondents’
averment that technically the Centres are not covered by section
196.
Smyth maintained strongly that the law places the Centres under the
control and jurisdiction of the Second Respondent and
that from 1
April 2012 the Centres including the physical infrastructures became
the responsibility of the second respondent, namely,
Social
Development. He also maintained that the Centres could not be
repurposed as same had to be used for the purposes as contemplated
in
the Children’s Act.
12] A further affidavit was served in
reply by the Applicants. In an application for leave from this court
to file same, Smyth stated
that the further affidavit by Leppan was
necessary due to the overly technical and elusive approach adopted by
the Respondents
in their answering affidavits as regards the
detrimental effects of mixing children at the same centre. The
Respondents brought
an application to strike out the further
affidavit for the reason that the applicants were effectively seeking
to make out a new
case in reply and it was further argued to be an
abuse of the court’s process. Leave was also sought by the
Respondents
for this court to accept a fourth set of affidavits,
termed as the “First to Fourth Respondents’ Second
Answering Affidavit”
which included an affidavit and expert
report by Dr. Lesley Corrie and a confirmatory affidavit deposed to
by Linda Nothnagel.
In response a further affidavit was deposed by
Leppan and leave was also sought for such affidavit to be filed.
Once again, the
Respondents deposed to a further affidavit, titled as
the “First and Second Respondents’ further affidavit in
response
to Applicants’ affidavit dated 12 December 2012”
and sought leave to file same. I shall deal with these applications
later.
APPLICABLE LAW:
13] Sections 196(1)(d) and (e) of the
Children’s Act is central in the determination of the relief
sought. It provides that:
“(1) As from the date on which
section 195 takes effect-…
(d) a government industrial school
established in terms of section 33 of the Children’s Protection
Act, 1913 (Act No.25 of
1913) and maintained as a school of
industries in terms of the Child Care Act must be regarded as having
been established in terms
of section 195 as a child and youth care
centre providing a residential care programme referred to in section
191(2)(i); and
(e) a reformatory established in terms
of section 52 of the Prisons and Reformatories Act, 1911 (Act No.13
of 1911) and maintained
as a reform school in terms of the Child Care
act must be regarded as having been established in terms of section
195 as a child
and youth care centre providing a residential care
programme referred to in section 191(2)(j).
14] Section 191(2)(i) defines the
requisite programme for the transformation of the former school of
industries to be for: “the
reception, development and secure
care of children with behavioural, psychological and emotional
difficulties.” Whilst Section
191(2)(j) in relation to former
reformatory schools to be for: “the reception, development and
secure care of children in
terms of an order - (I )under section 29
or Chapter 10 of the Child Justice Act, 2008; (ii) in terms of
section 156(1)(i) placing
the child in a child and youth care centre
which provides a secure care programme; or (iii) in terms of section
171 transferring
a child in alternative care;”
15] Section 196(2) of the Children’s
Act, which reads: “The provincial department of education must
provide education
to the children in the facilities mentioned in
paragraphs (d) and (e).” places an obligation on the Education
Department
to provide education to the children in these facilities.
16] Section 196(3) of the Children’s
Act provides that:
“A school of industries referred
to in paragraph (d) and a reform school referred to in paragraph (e)
which are the responsibility
of a provincial department of education
on the date when this section comes into operation becomes the
responsibility of a provincial
department of social development
within two years of the commencement of this chapter.”
Thus, in terms of this section the
Centres which were the responsibility of the Department of Education
on 1 April 2010 became the
responsibility of the Department of Social
Development as at 1 April 2012. However, the obligation to provide
education to these
children is vested in the Department of Education.
17] Section 192 of the Children’s
Act provides that:
“(1) the Minister, after
consultation with interested persons and the Ministers of Education,
Health, Home Affairs and Justice
and Constitutional Development must
include in the departmental strategy a comprehensive national
strategy aimed at ensuring an
appropriate spread of child and youth
care centres throughout the Republic providing the required range of
residential care programmes
in the various regions, giving due
consideration as provided in section 11, to children with disability
or chronic illness.
(2) The MEC for social development must
within the national strategy referred to in subsection (1) provide
for a provincial strategy
aimed at the establishment of an
appropriate spread in the province of properly resourced,
co-ordinated and managed child and youth
care centres providing the
required range of residential care programmes.
(3) The MEC for social development must
compile a principal profile at the prescribed intervals in order to
make the information
available that is necessary for the development
and review of the strategies referred to in subsections (1) and (2).
(4) The provincial head of social
development must maintain a record of all available child and youth
care centres in the province
concerned and of the programmes
contemplated in section 191 offered by each centre.”
(underlined emphasis my own)
DISCUSSION:
18] From the reading of Section 195 of
the Children’s Act which took effect on 1 April 2010 it is
clear that the affected
CYCC’s must be regarded as having been
established in terms of section 195 of the Children’s Act as
CYCC’s providing
residential care programmes referred to in
section 191(2)(i) of the Children’s Act. The case for the
Applicants is that
Die Bult Centre, Ottery Centre and Wellington
Centre (all of which were industrial schools) must be regarded as
having been established
in terms of section 195 of the Children’s
Act as child and youth care centres providing residential care
programmes referred
to in section 191(2)(i). As regards Eureka
Centre (which was a reformatory school) it must be regarded as having
been established
in terms of section 195 of the Children’s Act
as a CYCC providing a residential care programme referred to in
section 191(2)(j).
In opposing the Applicant’s case, the
Respondents argue that these four CYCC’s are not subject to
section 195 and that
it had been closed in 2000 and re-established as
public schools for children with special educational needs.
What role does the national strategy
play in this process?
19] Section 192(1) of the Children’s
Act places an obligation on the Fifth Respondent, the Minister of
Social Development
(“the National Minister”), to include
in the departmental strategy a comprehensive national strategy aimed
at ensuring
an appropriate spread of CYCCs throughout the Republic
providing the required range of residential care programmes in the
various
regions.
20] Section 192(2) states that the
relevant MEC for social development must within the national strategy
referred to in s 192(1)
provide for a provincial strategy aimed at
the establishment of an appropriate spread in the province of
properly resourced, coordinated
and managed CYCCs providing the
required range of residential care programmes. On 20 March 2014 the
National Minister agreed,
by way of an Order of this Court, to
produce the comprehensive national strategy by 31 July 2014, or to
file a report under oath
why such strategy had not been produced. On
30 July 2014, Mr. Coceko Pakade, the Director General in the National
Department of
Social Development (“the National Department”),
deposed to an affidavit stating that “the National Minister is
in the process of compiling a national strategy”, and that “a
report will be prepared as to the progress being made
on the national
strategy which report will then be placed before this court”.
As at the hearing of this matter and in response
to a question by the
Court apropos the significant absence of such report, Mr. Katzeff
submitted to the court that he is bound
to the papers and has no
further instructions in this regard. In the affidavit by Pakade, the
National Department was, as at July
2014, still “developing a
spatial optimization model to assist in the determination of the
geographical spread of needs which
would include a determination of
travelling distance to the various facilities.” Notably it has
been approximately five years
since the commencement of section
192(1) of the Act. The national strategy has not been produced and
consequently the third respondent
could not produce its provincial
strategy.
21] The Applicant’s argument is
that absent a national and provincial strategy, the Provincial
Minister cannot arguably roll
out any new CYCC’S and certainly
cannot close any.
ISSUE IN DISPUTE / APPLICATION OF
THE LAW TO THE FACTS:
22] The crisp issue for determination
by this court is whether specifically these four centres fall within
the purview of section
196 of the Children’s Act.
Do these four centres meet the two
requirements of section 196?
23] Insofar as Section 196 applies to
schools that have been established in terms of the 1913 Children’s
Protect Act (“1913
Act”) or the 1911 Reformatories Act
(“1911 Act”) and maintained as schools of industries or
as reform schools
Mr. Jamie argued that both requirements have been
met. As indicated earlier in this judgment, these centres were
closed in 2000
and re-established as public schools for children with
special educational needs. Thus, the challenge for the applicants is
that
these centres were therefore strictly speaking not established
in terms of the 1913 or 1911 Acts. Of course therein rests the
strength of the argument for the Respondents, for on their version
only those schools actually established in 1913 as industrial
schools
and which have not been “closed” and “re-established”
under successive or alternate legislation,
will be covered by section
196(1)(d). Similarly, only those schools actually established in
1911 as reformatories, and which have
not been “closed”
and “re-established” under successive or alternate
legislation, will be covered by section
196(1)(e).
24] The argument in the alternate for
the Applicant, and were this court to find that the Centres do not
meet the “established”
requirement, then Section 196
nonetheless applies to the Centres in that the word ‘and’
in ss 196(1)(d) and (e) ought
to be read disjunctively rather than
conjunctively. In other words, ‘and’ should in fact be
read as ‘or’
for the purposes of those sections which
applicants submit would bind the centres to section 196. The basis
of the applicants’
argument is that to give the sections their
ordinary meaning would lead to an absurdity in that it would amount
to an arbitrary
distinction being drawn between reform schools and
schools of industries established in either the Children’s
Protection
Act 1913 or the Prisons and Reformatories Act 1911
respectively and those established in terms of other legislation.
25] Mr. Katz argued that until such
time as the Western Cape Education Department’s decisions to
close the Centres as Schools
of Industry and Reform Schools, and to
re-establish the Centres as public schools for children with special
educational needs,
are set aside by a court in proceedings for
judicial review, those decisions exist in fact and have legal
consequences that cannot
simply be overlooked by the applicants. At
this juncture Mr. Jamie confirmed that the applicants would not seek
to set aside on
review the decisions of the education department to
close the schools in 2000 or to re-establish the schools under the
Western
Cape Schools Act as schools for learners with special needs.
He further submitted that given the case for the Applicant it was
not
necessary for them to do so. Mr.Katz continued that the effect of
the decision to close the Centres as Reform schools and
Schools of
Industry on 31 December 2000, is that the Centres as a matter of law
were not (as at 1 April 2010) established and maintained
in terms of
section 33 of the Children’s Protection Act 25 of 1913 or
established in terms of section 52 of the Prisons and
Reformatories
Act 13 of 1911. He argued further that this court should deal with
the centres insofar as they are in fact and in
law, public schools
for children with special education needs and that in the premise
they do not fall within the ambit of section
196.
26] Mr. Katz argued that the Applicants
had not provided a basis upon which this court ought to depart from
the prima facie meaning
of the wording of ss 196(1)(d) and (e) of
the Children’s Act, and as such, in order for the Centres to
fall within the ambit
of these provisions they would have had to be
established and maintained as either schools of industries or reform
schools in terms
of the Child Care Act. In response to a question by
the court that a purposive interpretation would favour the reading of
“and”
to be read as “or” allowing for either
schools established as well as school having been maintained as such
to be the
subject of Section 196, more so in view of the fact that
these centres were post 2000 still operating as such, Mr. Katz
replied
that even on such an interpretation, the case for the
applicants ought to fail as the schools in question were not
“lawfully”
operating. Section 196, he contended, would
require any school that was being maintained as a reform or industry
school to be one
that was “lawfully” being maintained and
though the Centres carried on after 2000 as such, their actions were
not lawful
as the schools were strictly speaking closed by
proclamation on 31 December 2000.
FINDINGS:
27] I shall in my findings not deal
with each and every argument by counsel or averments contained in the
papers, save where it
is relevant to the findings of this court.
28] The issue of non-joinder raised by
the Respondents in respect of the CYCC’s, Eureka, Die Bult and
Wellington, was addressed
prior to the hearing of this matter and
they had been joined to the proceedings by order of court. This
point in limine was accordingly
dealt with and not pursued at the
hearing. The school governing bodies of the aforesaid centres were
joined as the seventh, eighth
and ninth respondents respectively.
29] The Respondents brought an
application to strike out the applicant’s replying affidavit in
part for the reason that it
sought to make out a new case in reply.
It is trite law that in motion proceedings, an applicant must make
out its case in its
founding affidavit and that it stands or fall by
that which is contained therein. In particular, the facts
essentially addressed
in the further affidavit were clearly known to
the Respondents at the time of launching the application and the
information ought
to have formed part of the founding papers. It is
my considered opinion that if these affidavits were to be allowed, it
would
result in these proceedings being open-ended. Scholtz JA put
it as follows in Minister of Environmental Affairs and Tourism v Bato
Star Fishing (Pty) Ltd
2003 (6) SA 407
(SCA) at 439G-H:
“There is one other matter that I
am compelled to mention – replying affidavits. In the great
majority of cases the
replying affidavit should be by far the
shortest. But in practice it is very often by far the longest –
and the most valueless.
It was so in these reviews. The
respondents, who were the applicants below, filed replying affidavits
of inordinate length.
Being forced to wade through their almost
endless repetition when the pleading of the case is all but over
brings about irritation,
not persuasion. It is time that the Courts
declare war on unnecessarily prolix replying affidavits and upon
those who inflate
them.”
30] I am not persuaded by the reasons
advanced by the Applicants to grant leave to file the affidavit of
Leppan. In the interests
of justice and finality of matters the
application for leave to do so is accordingly dismissed. The
affidavit in question and
all further affidavits by both the
Applicants and the Respondents filed thereafter are herewith ordered
to be pro non scripto.
Do the provisions of section 196
apply to the centres?
31] The Applicant seeks to prevent the
repurposing of the Centres. They also argue that it is not in the
best interests of children
found to be in need of care to be placed
with children who had been convicted/sentenced or diverted from
criminal offences. Respondents
are adamant that section 196 is not
applicable to the centres and as such this court is constrained to
deal with the centres as
public schools for learners with special
education needs. The question is a complex one, no doubt best
answered by considering
the de facto status of these Centres as they
had functioned at the time of the commencement of this legislation
viewed within the
spirit and purport of the Children’s Act.
The preamble sets out that:
“WHEREAS the Constitution
establishes a society based on democratic values, social justice and
fundamental human rights and
seeks to improve the quality of life of
all citizens and to free the potential of each person…”
32] The intention of the legislature by
the passing of this legislation is clearly defined to promote the
fact that every child
has the rights set out in section 28 of the
Constitution. The State bears the corresponding obligation to
respect, protect, promote
and fulfil those rights. The Children’s
Act recognises that the protection of children’s rights leads
to a corresponding
improvement in the lives of other sections of the
community because it is neither desirable nor possible to protect
children’s
rights in isolation from their families and
communities. The United Nations has in the Universal Declaration of
Human Rights proclaimed
that children are entitled to special care
and assistance. Hence, the legislature recognised that it was
necessary to effect changes
to existing laws relating to children in
order to afford them the necessary protection and assistance so that
they can fully assume
their responsibilities within the community and
develop his or her personality in an environment which recognises
these rights
and are sensitive to the different needs of children.
Section 9 of the Children’s Act, headed, “Best interests
of
child paramount” requires that in all matters concerning the
care, protection and well-being of a child the standard that
the
child’s best interest is of paramount importance, must be
applied. Section 10, “Child Participation”, guarantees
that 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.
33] In my view, the interpretation that
is being sought from this court must be assessed and interpreted by
way of purposive interpretation
and thereby echo the spirit and tenor
of the Children’s Act and the Constitutional values of our
society in particular the
rights of children. To interpret section
196 restrictively would in my view not promote the objects of the
Bill of Rights. In
terms of Section 28 of our Constitution, every
child has the right inter alia to family care or parental care, or to
appropriate
alternative care when removed from the family
environment. Every child also has the right to social services and
protection from
maltreatment, neglect, abuse or degradation. For
there to be an arbitrary distinction between schools established
under the 1911
and 1913 Acts and those established thereafter is
contrary to the objects and purposes of the Children’s Act and
the Bill
of Rights. In my view there would have been no basis for
such distinction to have been drawn and that the lack of reference to
these four schools (which by then had been re-established by
proclamation) must be deemed to have been an oversight by the
legislature.
To not do so would amount to an absurd result and would
be adverse to the children of the Western Cape Province.
34] An analysis of other sections in
the Children’s Act further supports my finding. Section 197
provides that: “any
national or provincial state department
responsible for social development, municipality and accredited
organisation may establish
and operate a child and youth care
centre.” (underlined emphasis my own) In other words, the
legislature had not provided
for the Education Department to
“establish and operate” a CYCC. I consider the absence
of reference to the Education
Department to mean that there is no
room for the Education Department to retain responsibility for the
centres. If the legislature
had intended this, at the very least,
clear provisions would exist for the retention of all (or at least)
some of the centres as
secure care CYCC’s, albeit under the
responsibility of the Education Department. What justification would
exist for excluding
the children of the Western Cape from this
transition and the promotion of their rights as recognised and
contemplated by the Children’s
Act?
35] Even if this court were to find
that it does not meet with the “established” requirement
of the section, the question
that follows is whether the two
requirements are to be interpreted as co-requirements or that the
existence of either of the two
could suffice to satisfy section 196.
The interpretation that both factors must be met, that being,
established and maintained,
would not support an interpretation which
would enjoin the spirit of affording the children of the four centres
before this court
the protection and benefit as contemplated by this
very Act. This too applies to children of the geographical locations
of these
centres who presently and in future are found to be in need
of care and who would be entitled to the assurances they would
otherwise
had been entitled to. In Ngcobo and Others v Salimba CC;
Ngcobo v van Rensburg
1999 (8) BCLR 855
(SCA) the court held that in
the context of interpreting the use of the word “and” in
legislation, as follows:
“It is unfortunately true that
the words “and” and ”or” are sometimes
inaccurately used by the legislature,
and there are many cases in
which one of them has been held to be the equivalent of the
other…Although much depends on the
context and the subject
matter ….it seems to me that there must be compelling reasons
why the words used by the legislature
should be replaced; in case why
“and” should be read to mean “or” or vice
versa. The word should be given
their ordinary meaning “…unless
the context shows or furnishes very strong grounds for presuming that
the legislature
really intended” that the word not used is the
correct one (see Wessels J in Gorman v Knight Central GM Co Ltd
1911
TPD 597
at 610; my underlining): Such grounds will include that if
we give “and” or “or” their natural meaning,
the interpretation of the section under discussion will be
unreasonable, inconsistent or unjust…or that the result will
be absurd….or I would add, unconstitutional or contrary to the
spirit, purport and objects of the Bill of Rights…”
36] In the premise, I do not find that
both requirements must be met and in my view the meaning of “and”
ought not be
read conjunctively. Its inclusion in the section shall
not be viewed as having a connecting purpose in the construction of
the
sentence and is to be given a disjunctive meaning, which could be
read as “or”. These Centres were operating, functioning
and serving as schools of industries or reform in terms of the Child
Care Act and I am thus satisfied that it was maintained as
such for
the purposes of Section196. I am not persuaded by the argument for
the Respondent that these centres had been in the
process of winding
down since 2000. How can that so convincingly be? A period of no
less than 14 years or more had passed during
which the Centres were
functioning as CYCC’s running residential care programmes. In
the lives of the children it housed,
they were being cared for in
accordance with their challenges and in particular they were children
who had been found to be in
need of care. They have a right
established through the circumstances and the actions of those who
had been placed to care for
them, to be afforded dignity and respect
in the course of their further care. In Centre for Child Law and
Others v MEC for Education,
Gauteng and Others
2008 (1) SA 223
(T),
Murphy J held that: “As a society we wish to be judged by the
humane and caring manner in which we treat our children.
Our
Constitution imposes a duty upon us to aim for the highest standard,
and not to shirk from our responsibility….What
message do we
send to the children when we tell them that they are to be removed
from their parents because they deserve better
care, and then neglect
wholly to provide that care? We betray them, and we teach them that
neither the law nor State institutions
can be trusted to protect
them. In the process we are in danger of relegating them to a class
of outcasts, and in the final analysis
we hypocritically renege on
the constitutional promise of protection.”
37] I find that these Centres fall
within the ambit and transfer envisaged by the Children’s Act,
and must be regarded from
1 April 2010 as having been established
and/or maintained in terms of section 195 of the Children’s Act
as secure care child
and youth care centres, the responsibility for
which remained with the Department of Education (fourth respondent)
until 1 April
2012. Thereafter the responsibility was transferred
to, and remains with, the Department of Social Development (second
respondent).
However, the obligation rests on the Education
Department to provide education to children at these facilities.
What role does the National Strategy
play?
38] Section 192(1) of the Children’s
Act has obligated the Minister of Social Development (“National
Minister”)
to include in the departmental strategy a
comprehensive national strategy aimed at ensuring an appropriate
spread of child and
youth care centres throughout the Republic
providing the required range of residential care programmes in the
various regions.
On 20 March 2014 the National Minister agreed, by
way of an order of this court, to produce the comprehensive national
strategy
by 31 July 2014, or to file a report under oath as to why
such strategy had not been produced. On 30 July 2014 Pakade stated
in
his affidavit that the National Minister was in the process of
compiling a national strategy and that a report would be prepared
as
to the progress being made on the national strategy, which report
would then be placed before this court.
39] I was not provided with any such
report nor had the National Strategy been produced as at the hearing
of this matter. Mr. Katzeff
advised the court upon enquiry that he
holds no instructions in this regard and concedes to an order as
sought by the Applicant
in terms of prayers 1 and 2 of the Notice of
Motion. In my view, the National Strategy is paramount to the
changes in the lives
of the affected children, particularly in that
its purpose would be to develop a model to determine what would best
serve the geographical
needs of such centre and included therewith
the determination of travelling distance to the various facilities.
Differently put,
the National Strategy is to ensure that there is a
sufficient spread of residential care programmes. In light of the
fact that
children have already been moved from or reduced from the
centres and transferred to other secure care centres the question
follows:
How can such limitations to their clear
and distinct rights be justified in circumstances where the strategic
plan or model envisaged
by the legislature to assist the
transformation process had not been honoured notwithstanding the
lapse of five years since the
commencement of section 192(1) of the
Children’s Act?
40] It is common cause that absent the
National Strategy, a provincial strategy cannot follow as the latter
is dependent on the
former. The decision to repurpose the centres
was thus made without the national and provincial strategies. The
obvious question
follows: How will the consultation process required
by the National and Provincial Strategy and also Section 10 (“Child
Participation”) be given effect to? How would the goals of the
Children’s Act in this regard be achieved without that
which
the legislature had specifically envisaged to be provided in order to
ensure that there is an equal spread of CYCC’s?
National and
provincial strategies are after all professional programmes aimed at
determining exactly what our children need,
the geographical area
from which they come and budgetary resources to name but a few
vitally important beacons in this process.
The children in need of
care in the Western Cape cannot be expected to sacrifice their rights
at the altar of other competing
rights in circumstances where those
responsible for them had not yet ensured that a strategic plan is in
place to honour the constitutional
obligations which rest upon them.
The rights of these children as conferred by the Children’s Act
are a concrete embodiment
of the rights in Section 28 of the
Constitution, for every child, to receive appropriate alternative
care when removed from the
family, and to be protected from
maltreatment, neglect, abuse and degradation.
Can children in alternative care be
transferred to more restrictive care?
41] Section 171(1) provides that the
provincial head of social development may transfer a child in
alternative care from the CYCC
or person in whose care that child has
been placed to any other CYCC or person, subject, inter alia, to
ratification by a Children’s
Court if the child is transferred
to a secure or more restrictive child and youth care centre than
their present one. Section
171(4) provides for a certain measure of
consultation prior to such order being issued. Thus the intention of
the legislature
was quite clearly to ensure that when a child is
moved to a more secure facility, that it be done on an individualised
basis and
to ensure that not only is the environment conducive to the
said child, but also whether he or she would be compatible with that
environment. Following that rationale, I am of the view that the
legislator was alive to the notion that mixing of children –
those in need of care with children awaiting
trial/convicted/sentenced/diverted – would not be conducive to
their respective
care, development, rehabilitation and re-integration
into society. On the papers before me, the Applicants have made out
a substantial
and compelling case from which it can be accepted that
transferring of children to more secure CYCC’s and/or a blanket
mixing
those children would be detrimental to their social
development and welfare. The Respondent’s case is that the
decision
to repurpose the Centres involved a complex weighing of
competing needs and priorities against the available resources in
both
the areas of child and youth care services and special needs
education.
42] I am not persuaded by Respondents
submission that the children would be cared for and housed
separately. That does not necessarily
offer a solution to what I
would consider obvious adverse consequences. In fact the practical
difficulties and reality would prove
that it would not sufficiently
curtail the adverse effects thereof. No doubt a child found to be in
need of care would struggle
with the stigma associated with a
facility designed and known for that purpose. It would lower the
self-worth and self-esteem
of his or her developing psyche which had
already been exposed to challenging life crisis. Whilst the
Respondents have sought
to defend their intentions or decisions by
arguing that this is a policy-centric arena not for the court to
trench upon the terrain
of the executive, our courts have held in
similar cases that insofar as polycentric issues may arise from the
courts becoming involved
in budgetary or distribution matters, our
Constitution recognises, particularly in relation to children’s
rights that budgetary
implications ought not to compromise the
justiciability of the rights. (see supra Centre for Child Law and
others. ).
43] It is my considered opinion that
placing children that are in the care system with those awaiting
trial or who had been sentenced
amounts to a flagrant disregard of
Section 12 of our Constitution.
“12.(1) Everyone has the right to
freedom and security of the person, which includes, the right –
(a) not to deprived of freedom
arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of
violence from either public or private sources;” Correctional
facilities are known to have
a culture of induction into gangs by use
of force, violence and duress as well as riotous behaviour. Placing
children in need
of care in that environment amounts, in my view, to
an infringement of their constitutional right to security and freedom
from
violence. Furthermore, placing such children with those whom
had transgressed the law, results in my view to the deprivation of
their liberty and arguably a form of detention without a trial.
44] As the upper guardian of all minor
children and further guided by the principle of the best interests of
the children, this
court is empowered to make an order to address the
placements of children who have been placed in terms of section
156(1)(h) and
158 at the CYCC’s at Outeniqua, Vredelus, Horizon
and Clanwilliam and who are still so placed.
In the result I make the following
order:
i) The Fifth Respondent is directed to
produce and present to the Chief Registrar of this Court within six
(6) months from the
date of this order, the National Strategy
referred to in section 192(1) of the Children’s Act No 38 of
2005 (“Children’s
Act”);
ii) The First Respondent is directed to
produce, and present to the Chief Registrar of this Court, within a
period of four (4) months
from the date that the Fifth Respondent
produces the National Strategy referred to in paragraph 1 above, the
Provincial Strategy
referred to in section 192(2) of the Children’s
Act;
iii) It is declared that in accordance
with section 196(1)(d) of the Children’s Act, from 1 April
2010, Ottery Youth Centre
in Ottery in the Metro South Education
District (“Ottery Centre”), Die Bult Jeugsentrum in
George in the Eden and Central
Karoo Education District (“Die
Bult Centre”) and Wellington Youth Centre in Wellington in the
Cape Winelands Education
District (“Wellington Centre”)
are respectively regarded as having been established in terms of
Section 195 of the
Children’s Act as a child and youth care
centre providing a residential care programme referred to in section
191(2)(i) of
the Children’s Act;
iv) It is declared that in accordance
with section 196(1)(e) of the Act, from 1 April 2010, Eureka
Jeugsentrum in Groot Eiland in
the Cape Winelands Education District
(“Eureka Centre”) is regarded as having been established
in terms of section
195 of the Children’s Act as a child and
youth care centre providing a residential care programme referred to
in section
191(2)(j) of the Children’s Act.
v) It is declared that from 1 April
2012, Die Bult Centre, Eureka Centre, Ottery Centre and Wellington
Centre became the responsibility
of the Second Respondent, which
responsibility includes, but is not limited to:
(a) Being responsible for the
possession, use and upkeep of the physical infrastructure of each
child and youth care centre; and
(b) Ensuring that each child and youth
care centre is properly resourced, co-ordinated and managed in
compliance with its obligations
in terms of the Children’s Act.
vi) The Second Respondent is directed
to forthwith consider afresh the placements of those children who
have been placed in terms
of sections 156(1)(h) and 158 of the Act at
the secure care child and youth care centres at Outeniqua, Vredelus,
Horizon and Clanwilliam
and who are still so placed.
vii) No order as to costs.
SALIE-HLOPHE, J
JUDGE OF THE HIGH COURT
WESTERN CAPE