Magistrate’s discretion in children court proceeding
SM v Bezuidenhout and another  JOL 41522 (GJ)
An urgent application was brought before the Gauteng Division of the High Court, Johannesburg by the mother of three minor children for the review and setting aside of an interim order granted by the Children’s Court in Midvaal.
The interim order was granted by the Children’s Court whilst the parties were in the midst of divorce proceedings. The father had made an application to the Children’s Court seeking an order in terms of which all three children remain in his primary care. However, the Magistrate made an interim order to the following effect:
- One of the minor children be placed in the care of the father pending the investigation and reports by relevant psychologists and social workers;
- The other two minor children be placed in the care of the mother pending the investigation and reports by relevant psychologists and social workers;
- The minor child placed in the care of the father be allowed to relocate with the father to Cape Town who accepted an employment offer in Cape Town and be enrolled in a school there (para 1).
After granting the interim order, the mother applied to the High Court for the review and setting aside of the interim order on the following grounds:
- That the Magistrate granted the interim order in the absence of an application by the father to relocate the minor child to Cape Town;
- That that the Magistrate granted an interim order without hearing evidence, allowing cross-examine, and consider reports (para 4); and
- That the Applicant was not allowed to consider or oppose the reports of the experts.
The High Court held that although the Children’s Act provides that the Children’s Court proceedings must be conducted in an informal manner and as far as possible, in a relaxed and non-adversarial atmosphere which is conducive to attaining the co-operation of everyone involved in the process (section 60(3)), the Act does not intent “to give the presiding officer a free hand to dispense children’s justice as [it] deems fit in circumstance” (para 23).
In essence, a Magistrate cannot grant a party more than he or she prayed for in the Application brought before the Court. The Magistrate is also not allowed to treat social worker(s) report(s) as evidence without following the proper process – by affording the other party, who is prejudiced by the report, the opportunity to consider the report, answer thereto, and to cross-examine the social worker thereon (paras 28 & 29).
The court ordered that the interim order be set aside and that the minor child placed in the Respondent’s care be returned to the Applicant (in addition to other orders) (para 53).
Compiled by : Marili Orffer (Candidate Attorney); source: https://www.lexisnexis.co.za/
SM v Bezuidenhout and another
 JOL 41522 (GJ)
Case Number: 4782 / 19
Judgment Date: 22 / 02 / 2019
Country: South Africa
Jurisdiction: High Court
Division: Gauteng, Johannesburg
Bench: RM Keightley J
Keywords: Family Law and Persons – Children’s Court – Order regarding interim care and relocation – Review
In terms of an interim order made by the Children’s Court in the course of an ongoing inquiry involving the three children of the applicant and second respondent, the 10-year-old daughter (SM) of the couple was placed in the care of her father (Mr M) pending investigation and reports, and the other two children were placed in the care of their mother (Ms M) pending investigation and reports. SM and Mr M were allowed to relocate to the Cape where SM was permitted to enrol at a specified school.
Ms M sought the review and setting aside of the order on the basis that the presiding officer committed gross irregularities in granting it.
Held that section 60(3) of the Children’s Act provides that Children’s Court proceedings must be conducted in an informal manner and, as far as possible, in a relaxed and non-adversarial atmosphere which is conducive to attaining the co-operation of everyone involved in the proceedings. However, that is not intended to give the presiding officer a free hand to dispense justice as she deems fit in the circumstances. The Children’s Act prescribes various procedures to be followed in applications to the Children’s Court.
What was critical in the present matter was that the application serving before the court was Mr M’s application for primary care of all three children. He did not file an application that primary care be split with him having care of SM and Ms M having care of MM and JMM. Nor did he file an application for permission for him to relocate to the Cape at short notice, and to take SM with him. The presiding officer made her order sanctioning both of those states of affairs despite the fact that no application for that relief was before her. That warranted interference with the order. The presiding officer also wrongly attached evidential weight to two reports handed in, without more being required.
Satisfied that the order of the presiding officer was materially affected by gross procedural irregularities, the present court turned to consider what relief would be appropriate in the circumstances. The best interests of the children had to be at the heart of that enquiry. It ruled that the applicant sought to have primary care of all three children and set out the second respondent’s rights of contact. A forensic psychologist was to be appointed to investigate certain matters in the relationship between the female siblings.