Address by Justice Ponnan of the Supreme Court of Appeal∗ at the launch by the Centre for Child Law of the Guidelines for Legal Representation of Children in Civil Matters

When I was informed by the Registrar of my court that I had been invited to speak about my judgment[1] in Centre for Child Law v Hoërskool Fochville & another 2016 (2) SA 121; [2015] 4 All SA 571 (SCA), my response was that Judges are supposed to speak through their judgments.[2] I also reminded him that Lord Denning is reported to have once famously said – I have been concurred in and dissented from but I have never suffered the indignity of having one of my judgments explained. I have since been re-assured that I have been spared the indignity to which Lord Denning referred and that my remit extends beyond having to explain one of my judgments.

Like toilet paper, children do not come with instructions. It is quite fallacious though to assume that getting a handle on the former naturally qualifies you to manage the latter, because children are far more complex than a series of perforated paper squares. Most adults believe that they know everything – children are nature’s way of reminding them that that is not so. As a parent, I sometimes wish that children did come with instructions. More importantly, if they did come with instructions I wonder what those would be. Aside from the usual such as ‘fragile – handle with care’ or ‘this side up’, I imagine they would be, as our Constitution dictates, that in all matters concerning this child, its best interests shall be paramount. As Professor Julia Sloth-Nielsen pointed out with prophetic foresight, [zRPz]the inclusion of a general standard such as that for the protection of children’s rights in the Constitution can become a benchmark for the review of all proceedings in which decisions are taken regarding children.[3]

I say prophetic because as I shall endeavour to illustrate, first with reference to three other perhaps lesser known judgments of the SCA penned by me, and thereafter Hoërskool Fochville, that that overarching constitutional principle has had – as well it should – a profound effect on the development of our jurisprudence in relation to children.
The first in the trilogy is Brandt v S [2005] 2 All SA 1 (SCA),[4] which concerned the application of the minimum sentence legislation[5] to offenders under 18 – in terms of which a court was obliged to impose a statutorily prescribed minimum sentence (in that case a sentence of life imprisonment) unless substantial and compelling circumstances were found to be present. That enquiry was approached by us on the basis that the minimum sentencing legislation must be read in the light of the values enshrined in the Constitution and that the general principle, namely ‘the best interests of the child’ is the clearest indication that child offenders are deserving of special attention. Historically, so we noted in the judgment, our justice system has never had a separate, self-contained and compartmentalised system for dealing with child offenders. Instead, child offenders have generally been treated as smaller versions of adult offenders. Accordingly, it was necessary for the traditional aims of punishment in respect of child offenders to be reappraised and developed to accord with the spirit and purport of the Constitution. Thus, a child charged with an offence had to be dealt with in a manner which takes into account his/her age, circumstances, maturity as well as intellectual and emotional capacity. After referring to several international instruments, the judgment emphasised that in sentencing a young offender, the sentencing officer must be guided by certain principles: including the principle of proportionality; the best interests of the child; and, the least possible restrictive deprivation of the child’s liberty, which should be a measure of last resort and be restricted to the shortest possible period of time.

The second is Fish Hoek Primary School v GW 2010 (2) SA 141 (SCA). The facts are: the appellant school sued the respondent for payment of outstanding school fees in respect of one of its minor learners. It relied for its cause of action on s 40(1) of the South African Schools Act 84 of 1996, which provides that ‘A parent is liable to pay school fees’. The respondent asserted that whilst he was the biological father of the learner, he was not liable for the payment of the school fees, but that the custodian parent was. Both the Magistrates’ Court and the Cape High Court (on appeal to it) agreed with him. The High Court held that only a custodian parent is a parent as envisaged by the Act. It thus concluded that ‘parent’ in s 40(1) means ‘the [custodian by operation of law] parent or guardian’. We disagreed with the Cape High Court. Our judgment held:

‘An interpretation that burdens both parents with responsibility for school fees is consistent with the injunction in s 28(2) of the Constitution that “a child’s best interests are of paramount importance in every matter concerning the child”’.

The judgment continued that:

‘it unquestionably is in the best interests of a child that a non-custodian parent, who is unwilling, yet has the means, to pay his child’s school fees, should be made to do so, if necessary by the injunction of an order of a competent court. Were that not to be so, the custodian parent would solely be saddled with that responsibility. The sad truth is that many custodian parents are simply unable to pay or have been exempt from paying due to poverty. Were the school not to have the right to recover school fees from the non-custodian parent in those circumstances, it will either have to shoulder that loss or mulct other parents with additional charges. In either event it would be acting to the detriment of other learners’.

The judgment recognised that:

‘Historically, mothers have been the primary care-givers of children in this country.  That continues to be so. It is almost always mothers who become custodial parents and have to care for children on the breakdown of their marriage or other significant relationships. That places an additional financial burden on them and the sad reality is that they then become overburdened in terms of responsibilities and under-resourced in terms of means. Despite our constitutional promise of equality, the division of parenting roles continues to remain largely gender-based. . . . Courts should be acutely sensitive to the possibility that the differential treatment of custodian parents and their non-custodian counterparts often can and does constitute unfair gender discrimination. After all, the achievement of gender equality is a founding value of our Constitution. To interpret the section in such a way as to exclude the non-custodian parent from its operation, as the High Court has done, serves to frustrate the realisation of that goal’.

The third in the trilogy is the fairly recent judgment of Du Toit v Ntshinghila & others [2016] 2 All SA 328 (SCA), which was delivered on 11 March 2016. The home of the appellant had been searched and various items were seized. He was subsequently charged with possession of child pornography. He sought an order from the presiding Magistrate that the prosecution be directed to furnish him with copies of the images said to constitute the offence charged. He contended that he was entitled, without more, to be provided with copies of the images which are alleged to constitute child pornography. The prosecutor, who had objected to reproducing the images and furnishing copies to the defence, offered to put arrangements in place for him, his legal representatives and any expert for the defence to view the images. The Magistrate ruled that the arrangement proposed by the prosecution was adequate and dismissed his application. His appeal succeeded before the high court. The high court took the view that there was no warrant to limit his constitutional rights as an accused person and accordingly ordered the prosecutor to discover the images. The DPP then appealed to the SCA, which succeeded. We emphasised that in a matter such as this adequate weight must be accorded to the best interests of the children. We reasoned:

‘There exists in this case the reasonable privacy interests of the children who are depicted in the images. There is also a significant public interest in ensuring that no duplication or distribution occurs in the disclosure process. Those interests ought not to be further compromised by the copying, viewing, circulation or distribution of the images beyond what is reasonably necessary to give effect to his constitutional rights’.

And that:

‘A child compromised by a pornographer’s camera has to go through life knowing that the image is probably circulating within the mass distribution network for child pornography.’

Moreover, the distribution of child pornography further abused children by creating a permanent record of the child’s participation. This record, in turn permitted the harm to the child to be exacerbated each time the material was circulated and led to the creation of distribution networks that fostered further exploitation.

Turning then to the Hoërskool Fochville matter: the school, which since its inception had been an Afrikaans-medium school, had gone to the high court to challenge a directive by the Department of Education that it had to admit certain English-speaking learners. The Department launched a counter-application seeking to change the School’s language policy from Afrikaans to dual-medium. Although the parents of the learners in question had been cited as respondents in the main application, the Centre for Child Law (the Centre) applied to intervene in the matter. In support of the intervention application the Centre stated that the children who were enthusiastic about the idea of being given a chance to have their own views and wishes heard by the court, had been divided into groups of approximately six to eight learners. And that each child had been asked to complete a questionnaire without affixing their names thereto. The questionnaire had listed specific questions but the children could also write additional comments. The School gave notice that it was opposing the Centre’s intervention application, but, before filing an answering affidavit, it first served a notice in terms of Uniform Rule 35(12) on the Centre’s attorneys requiring the Centre to produce for inspection, all questionnaires completed by the learners. When the Centre refused, the School applied under rule 30A to court for an order compelling it to do so. In opposing that application the Centre stated:

‘There are 37 children actively involved in the litigation who wanted to express their views and participate in the litigation. This means that there are nuanced and varied views from each of the children. By allowing them to fill-in the questionnaires individually and consulting with them in small groups we could collate the children’s views and experiences in one affidavit. This would allow the court to get a full range of views without having to read through thirty seven affidavits’.

The high court ordered the Centre to deliver up for inspection and copying the original questionnaires and to pay the School’s costs. Unlike the high court, we approached the enquiry on the basis that in striking the appropriate balance in a case of this nature, adequate weight had to be accorded to the interests of the children. In that regard, so we held,

‘a useful starting point is an appreciation that the right of children to representation separate from their parents, flows from their right to participate in all matters that affect them. That is a right which is widely recognised in international law and forms part of South African law. . . .

The child’s right to have separate legal representation during legal proceedings in a matter such as this is thus clearly contemplated by those provisions.’[6]

The judgment reasoned:

‘Here the [Centre], in consultation with the children, elected to act in the interests of a group of children (including other similarly situated children) and in the public interest for inter alia the following reasons: The children expressed clear and strong views and opinions in respect of the case — independent of the views and opinions of their parents — and communicated some information that they were reluctant to share with their parents. They requested that their experiences of being at the [school] be placed before the court. Those parents who met with the [Centre] supported the idea of the children being separately represented in the matter. . . . Allowing [the children] to complete the questionnaires individually and consulting with them in small groups ensured that the children’s views and experiences were properly collated and articulated in one affidavit, thus allowing the court to get a full range of views without having to read some 37 affidavits. This approach appears to be more protective of the children. The children described victimisation within the school, especially by other children, and if cited individually and deposing to their own affidavits, they ran the potential risk of being vulnerable to reprisals or further victimisation. The 37 children directly affected expressed concern about siblings and neighbours who may need to attend the School in the future. The interests of children similarly placed as the children currently affected therefore may also require safeguarding. The [Centre’s] approach in this regard is consistent with that advocated by Professor Noel Zaal & Ann Skelton that —

“(i)t is necessary to promote a children’s rights culture in . . . court proceedings, and therefore the representative would ideally wish to be  supporting the wishes and instructions of the child. The child must, if possible, be convinced that the legal representative is his or her very own who will see that his or her views and hopes gain priority at the hearing.”’[7]

 

Accordingly, so continued the judgment,

‘in every weighing of rights and interests and any value judgment relating to whether the questionnaires should be produced, the best interests of the children would have to be the paramount consideration. Thus, even if the questionnaires were not protected by privilege or if the privilege had been waived, it may not have been appropriate for the court a quo to have ordered their disclosure on the basis that it would not have been in the children’s best interests to do so.’[8]

 

The judgment emphasised that the ‘best interests’ principle is but a starting point for any balancing of rights. As the School did not require to know the precise details of each incident in order to respond to the Centre’s application to intervene, there was no justifiable basis for holding that the interests of the School in investigating the identities of the children in order to answer the allegations outweighed the interests of the children in not having their identities disclosed, especially in the light of the fact that the children had disclosed the information (which they otherwise may not have done) on condition of, and in the  expectation of, their identities not being disclosed. The judgment accordingly concluded that the School could oppose the intervention application without the benefit of the questionnaires.

 

What these four cases demonstrate is the normative force of the yardstick – the best interests of children. In Brandt, like Fish Hoek Primary School, the principle was invoked to interpret legislation. Approaching the enquiry on the strength of that principle, Brandt concluded that where an offender was under 18, the sentencing court had an automatic discretion to depart from the prescribed minimum sentence and that such offenders did not have to establish substantial and compelling circumstances. Importantly, Fish Hoek Primary School favoured an interpretation that was not just protective of the interests of children, but also another vulnerable group – mothers. It bears noting that in both Du Toit and Hoërskool Fochville the children were not the primary litigants before the court. In the former, the children were no more than potential witnesses in the contemplated criminal trial. That notwithstanding, we concluded that protecting the interests of the children, would not, without more, result in an unfair trial for the accused. In effect, in undertaking the balancing exercise, the rights of those children were permitted to trump the rights of the accused. Hoërskool Fochville was concerned with an interpretation of the Uniform Rules of the High Court. Much of the credit in this case must go to the Centre, who, to borrow from Star Trek, decided to go where no attorney has gone before. The Centre significantly challenged the traditional way in which evidence is adduced before a court and recognised that implicit in the notion of according adequate weight to the interests of the children, was an appreciation that the right of children to representation separate from their parents, flows from their right to participate in all matters that affect them. Informed by that approach we were able to place an interpretation on the relevant rules of court to the effect that the children’s interests in non-production of the questionnaires outweighed the School’s interests in demanding production.

[1] By ‘my judgment’, I really mean, as Corbett CJ referred to a judgment of the SCA (on the conferment of an LLD honoris causa by Rhodes University on 6 April 1990), as one that ‘represents an amalgam of the ideas, ingenuity, legal knowledge and expertise, humanity and wisdom of every member of the panel’. See Ellison Kahn ‘Michael McGregor Corbett – Gamaliel Redux’ in Ellison Kahn (ed) The quest for justice: Essays in honour of Michael McGregor Corbett Chief Justice of the Supreme Court of South Africa (1995) at 39.

[2] See, for instance, Power & others v Canada (Attorney General) [2003] 105 CRR (2d) 277 para 170.

[3] Cited with approval in S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) para 15. See Julia Sloth-Nielsen ‘The child’s right to social services, the right to social security, and primary prevention of child abuse: Some conclusions in the aftermath of Grootboom’ (2001) 17 SAJHR 210 at 211.

[4] Also reported sub nom S v B 2006 (1) SACR 311 (SCA). For a discussion of the judgment see Professor Julia Sloth-Nielsen: ‘Juvenile sentencing comes of age’ (2005) 16 Stell LR 98.

[5] Criminal Law Amendment Act 105 of 1997 (more commonly referred to as the ‘Minimum Sentence Act’). Following upon this judgment, s 51(3)(b) of the Act was amended by the Criminal Law (Sentencing) Amendment Act 38 of 2007. The constitutional validity of that amendment was challenged by the Centre in Centre for Child Law v Minister of Justice and Constitutional Development & others (NICRO, as Amicus Curiae) 2009 (2) SACR 477 (CC).

[6] Hoërskool Fochville paras 19 and 20.

[7] Paragraph 25. (Footnotes omitted.)

[8] Paragraph 26.