Fourie and Another v de Wet and Others (13080/2022) [2023] ZAWCHC 112 (17 May 2023)

Fourie and Another v de Wet and Others (13080/2022) [2023] ZAWCHC 112 (17 May 2023)

The court held that the terminology of 'care' as used in the Children’s Act and the High Court order encompasses the concept of 'custody' and 'legal custody' for all legal purposes, including the requirements of the medical aid scheme. Section 1(2) of the Children’s Act expressly provides that 'custody' must be construed to mean 'care', and the order granted the applicants both guardianship and care of the children. The medical aid scheme’s reliance on outdated terminology does not justify the exclusion of the children as dependents, as the legislative framework has replaced 'custody' with 'care', which includes all relevant parental responsibilities and rights. The court amended the...

Citation
[2023] ZAWCHC 112
Parties
Applicant: Anine Fourie; Applicant: Daniel de Wet Schreiber; Respondent: Abraham Steyn de Wet; Respondent: Ilze-Marie de Wet; Respondent: Presiding Officer: Children’s Court for the District of Caledon N.O.; Respondent: Master of the High Court, Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 May 2023
Case Number
13080/2022
Procedural Posture
Urgent Application / Ex Parte Application to Amend Previous Order
Outcome
Application granted. The order of 26 August 2022 is amended to declare that 'care' includes 'custody' and 'legal custody'.
Judges
Pangarker
Legal Topics
Guardianship of Minors, Interpretation of Children Act, Medical Aid Dependents, Urgent Ex Parte Relief
Family and Children Civil Procedure Guardianship of Minors Interpretation of Children Act Medical Aid Dependents Urgent Ex Parte Relief

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Parties

Anine Fourie

Applicant

Daniel de Wet Schreiber

Applicant

Abraham Steyn de Wet

Respondent

Ilze-Marie de Wet

Respondent

Presiding Officer: Children’s Court for the District of Caledon N.O.

Respondent

Master of the High Court, Cape Town

Respondent

Procedural Posture

Urgent Application / Ex Parte Application to Amend Previous Order

Legal Issues

  1. 1 Whether the High Court's order granting 'care' to the applicants includes 'custody' and 'legal custody' for purposes of medical aid scheme rules.
  2. 2 Whether the terminology used in the Children’s Act and the court order satisfies the requirements of the medical aid scheme for dependent status.
  3. 3 Whether the medical aid scheme's exclusion of the children as dependents is justified under current legislation.

Ratio Decidendi

The court held that the terminology of 'care' as used in the Children’s Act and the High Court order encompasses the concept of 'custody' and 'legal custody' for all legal purposes, including the requirements of the medical aid scheme. Section 1(2) of the Children’s Act expressly provides that 'custody' must be construed to mean 'care', and the order granted the applicants both guardianship and care of the children. The medical aid scheme’s reliance on outdated terminology does not justify the exclusion of the children as dependents, as the legislative framework has replaced 'custody' with 'care', which includes all relevant parental responsibilities and rights. The court amended the...

Court Disposition

Application granted. The order of 26 August 2022 is amended to declare that 'care' includes 'custody' and 'legal custody'.

Orders

  • Paragraph 4 of the order dated 26 August 2022 is amended by the addition of paragraph 4.1: 'It is declared that the reference to “care” in paragraph 4 of the Order shall be construed to also mean and include the terms “custody” and “legal custody”.'
  • No order as to costs.