B and Another v B (1592/2010) [2010] ZAGPJHC 159; 2012 (2) SA 394 (GSJ) (20 January 2010)

B and Another v B (1592/2010) [2010] ZAGPJHC 159; 2012 (2) SA 394 (GSJ) (20 January 2010)

The court held that the second applicant, a sixteen-year-old minor and party to the proceedings, is entitled to independent legal representation in the pending application concerning his residence and education. Section 14 of the Children’s Act supplements and broadens the constitutional right to legal representation, not limiting it to cases of substantial injustice or to State-appointed practitioners. The objections to Adv. Kathawaroo’s appointment were dismissed as unfounded, and the court found no reason to disturb the manner in which the second applicant brought the matter to court. The urgency of the application was justified by the imminent hearing on the child’s residence and...

Citation
[2010] ZAGPJHC 159
Parties
Applicant: Mr. B; Applicant: B; Respondent: Mrs. B
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
20 January 2010
Case Number
1592/2010
Procedural Posture
Urgent Application / Determination of Part a and Counter Application; Referral of Part B for Future Hearing
Outcome
Application and counter-application determined as urgent; second applicant entitled to independent legal representation; matter referred to Family Advocate; second applicant ordered to return to school; costs reserved.
Judges
P.A. Meyer
Legal Topics
Child Legal Representation, Best Interests of Child, Urgent Interdict, Parental Rights and Responsibilities
Family and Children Civil Procedure Child Legal Representation Best Interests of Child Urgent Interdict Parental Rights and Responsibilities

Case Brief

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Parties

Mr. B

Applicant

B

Applicant

Mrs. B

Respondent

Procedural Posture

Urgent Application / Determination of Part a and Counter Application; Referral of Part B for Future Hearing

Legal Issues

  1. 1 Whether the second applicant, a minor, is entitled to independent legal representation in the pending application affecting his residence and education.
  2. 2 Whether the matter is sufficiently urgent to justify deviation from the normal rules of court.
  3. 3 Whether the second applicant should be ordered to return to Redhill School pending the final determination of the matter.

Ratio Decidendi

The court held that the second applicant, a sixteen-year-old minor and party to the proceedings, is entitled to independent legal representation in the pending application concerning his residence and education. Section 14 of the Children’s Act supplements and broadens the constitutional right to legal representation, not limiting it to cases of substantial injustice or to State-appointed practitioners. The objections to Adv. Kathawaroo’s appointment were dismissed as unfounded, and the court found no reason to disturb the manner in which the second applicant brought the matter to court. The urgency of the application was justified by the imminent hearing on the child’s residence and...

Court Disposition

Application and counter-application determined as urgent; second applicant entitled to independent legal representation; matter referred to Family Advocate; second applicant ordered to return to school; costs reserved.

Orders

  • Non-compliance with the Rules of Court is condoned and Part A of the application and the counter-application are determined as matters of urgency.
  • The second applicant is entitled to legal representation in the application for the relief set out in Part B of the Notice of Motion and Adv. Kathawaroo is appointed to assist him.