Chirindza and Others v Gauteng Department of Health and Social Welfare and Others (47723/2010) [2011] ZAGPPHC 75; [2011] 3 All SA 625 (GNP) (27 May 2011)

Chirindza and Others v Gauteng Department of Health and Social Welfare and Others (47723/2010) [2011] ZAGPPHC 75; [2011] 3 All SA 625 (GNP) (27 May 2011)

Sections 151 and 152 of the Children’s Act 38 of 2005 are unconstitutional to the extent that they fail to provide for judicial review of the removal and placement of children in temporary safe care. The absence of a mechanism requiring the child to be brought before the Children’s Court within a reasonable time deprives children and parents of the opportunity to contest the removal, violating constitutional and international rights to family care and judicial oversight. The legislative gap is not remedied by general rights to review under PAJA or the Constitution, as vulnerable parties are unlikely to access such remedies. The court ordered 'reading in' to provide that, within 48 hours,...

Citation
[2011] ZAGPPHC 75
Parties
Applicant: Thomas Frederico Chirindza; Applicant: Sikoluhle Moyo; Applicant: Centre for Child Law; Respondent: Gauteng Department of Health and Social Welfare; Respondent: City of Tshwane Metropolitan Municipality; Respondent: Itereleng Residential Facility for the Disabled; Respondent: Desmond Tutu Place of Safety; Respondent: Pabalelo Place of Safety; Respondent: Minister of Police; Respondent: Minister of Social Development
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
27 May 2011
Case Number
47723/2010
Procedural Posture
Constitutional Application / Final Judgment on Constitutional Validity and Declaratory Relief
Outcome
Sections 151 and 152 of the Children’s Act declared unconstitutional to the extent of failing to provide for judicial review of removal and placement in temporary safe care. Interim 'reading in' order granted pending Constitutional Court confirmation. Costs awarded as specified.
Judges
H Fabricius
Legal Topics
Judicial Review of Administrative Action, Best Interests of the Child, Children S Act, Constitutional Invalidity, International Child Rights, Declaratory Relief
Constitutional Law Family and Children Civil Procedure Judicial Review of Administrative Action Best Interests of the Child Children S Act Constitutional Invalidity International Child Rights +1 more

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Parties

Thomas Frederico Chirindza

Applicant

Sikoluhle Moyo

Applicant

Centre for Child Law

Applicant

Gauteng Department of Health and Social Welfare

Respondent

City of Tshwane Metropolitan Municipality

Respondent

Itereleng Residential Facility for the Disabled

Respondent

Desmond Tutu Place of Safety

Respondent

Pabalelo Place of Safety

Respondent

Minister of Police

Respondent

Minister of Social Development

Respondent

Procedural Posture

Constitutional Application / Final Judgment on Constitutional Validity and Declaratory Relief

Legal Issues

  1. 1 Whether sections 151 and 152 of the Children’s Act 38 of 2005 are unconstitutional for failing to provide for judicial review of removal and placement of children in temporary safe care.
  2. 2 Whether the absence of judicial review infringes the rights of children and parents under the Constitution and international law.

Ratio Decidendi

Sections 151 and 152 of the Children’s Act 38 of 2005 are unconstitutional to the extent that they fail to provide for judicial review of the removal and placement of children in temporary safe care. The absence of a mechanism requiring the child to be brought before the Children’s Court within a reasonable time deprives children and parents of the opportunity to contest the removal, violating constitutional and international rights to family care and judicial oversight. The legislative gap is not remedied by general rights to review under PAJA or the Constitution, as vulnerable parties are unlikely to access such remedies. The court ordered 'reading in' to provide that, within 48 hours,...

Court Disposition

Sections 151 and 152 of the Children’s Act declared unconstitutional to the extent of failing to provide for judicial review of removal and placement in temporary safe care. Interim 'reading in' order granted pending Constitutional Court confirmation. Costs awarded as specified.

Orders

  • Sections 151 and 152 of the Children’s Act 38 of 2005 are declared unconstitutional to the extent that they fail to provide for judicial review of removal and placement in temporary safe care.
  • Pending confirmation by the Constitutional Court, section 151(7) and section 152(7) are to read as though they require, within 48 hours, the matter to be placed before the Children’s Court for review, with notice to parents and the child’s presence where practicable.