JM and Another v Free State Care In Action and Others (5829/2017) [2018] ZAFSHC 42 (5 April 2018)

JM and Another v Free State Care In Action and Others (5829/2017) [2018] ZAFSHC 42 (5 April 2018)

The High Court held that the application to set aside the Children’s Court order was procedurally improper. The applicants failed to follow the prescribed procedures for review or appeal, which require the record of the lower court and are normally heard by more than one judge. Service of the application by email was not permitted under the Rules, and there was no agreement from the respondents for such service in this new application. The request for an investigation by the Family Advocate was refused, as the Family Advocate’s statutory powers do not extend to non-divorce matters or to reviewing Children’s Court decisions. The Children’s Court had the statutory authority to determine...

Citation
[2018] ZAFSHC 42
Parties
Applicant: J M; Applicant: D K; Respondent: Free State Care In Action; Respondent: Onalerone Madigoane; Respondent: Carmen Parks N.O; Respondent: Free State Department of Social Development; Respondent: Head of Department: Free State Department of Social Development; Respondent: Member of Executive Council: Free State Department of Social Development
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
5 April 2018
Case Number
5829/2017
Procedural Posture
Urgent Application / Application to Set Aside Children’s Court Order by Urgent Motion Before a Single Judge
Outcome
Application dismissed.
Judges
Benade
Legal Topics
Children S Act, Jurisdiction of Children S Court, Review Vs Appeal, Service of Process, Role of Family Advocate
Family and Children Civil Procedure Children S Act Jurisdiction of Children S Court Review Vs Appeal Service of Process Role of Family Advocate

Case Brief

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Parties

J M

Applicant

D K

Applicant

Free State Care In Action

Respondent

Onalerone Madigoane

Respondent

Carmen Parks N.O

Respondent

Free State Department of Social Development

Respondent

Head of Department: Free State Department of Social Development

Respondent

Member of Executive Council: Free State Department of Social Development

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Children’s Court Order by Urgent Motion Before a Single Judge

Legal Issues

  1. 1 Whether a Children’s Court order can be set aside by urgent application before a single judge, rather than by appeal or Rule 53 review.
  2. 2 Whether service of the application by email constituted proper service under the Rules.
  3. 3 Whether the High Court can instruct the Family Advocate to investigate and report in non-divorce matters.

Ratio Decidendi

The High Court held that the application to set aside the Children’s Court order was procedurally improper. The applicants failed to follow the prescribed procedures for review or appeal, which require the record of the lower court and are normally heard by more than one judge. Service of the application by email was not permitted under the Rules, and there was no agreement from the respondents for such service in this new application. The request for an investigation by the Family Advocate was refused, as the Family Advocate’s statutory powers do not extend to non-divorce matters or to reviewing Children’s Court decisions. The Children’s Court had the statutory authority to determine...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.