Minister of Social Development Western Cape and Others v Justice Alliance of South Africa and Another (20806/2013) [2016] ZAWCHC 34 (1 April 2016)

REPUBLIC OF SOUTH AFICA

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

Case No. 20806/2013

DATE: 1 APRIL 2016

In the matter between:

THE MINISTER OF SOCIAL DEVELOPMENT

WESTERN CAPE............................................................................................................First Appellant

THE DEPARTMENT OF SOCIAL DEVELOPMENT

WESTERN CAPE........................................................................................................Second Appellant

THE MINISTER OF EDUCATION, WESTERN CAPE...........................................Third Appellant

THE DEPARTMENT OF EDUCATION, WESTERN CAPE.................................Fourth Appellant

And

THE JUSTICE ALLIANCE OF SOUTH AFRICA..................................................First Respondent

GOVERNING BODY, OTTERY YOUTH CENTRE...........................................Second Respondent

Before: The Hon. Mr Justice Binns-Ward

The Hon. Ms Justice Fortuin

The Hon. Ms Justice Boqwana

Date of appeal hearing: 30 March 2016

Date of judgment: 1 April 2016

JUDGMENT

BINNS-WARD J (FORTUIN and BOQWANA JJ concurring):

[1] This matter is an appeal in terms of s 18 of the Superior Courts Act 10 of 2013. It is convenient to refer to the parties as they were cited in the principal case before the court of first instance.

The first to fourth respondents[1] have come on appeal against the order by the court of first instance on 2 March 2016 directing that paragraphs (iii), (iv) and (vi) of the order made in its judgment, dated 31 August 2015,[2] would – otherwise than as ordinarily provided in terms of s 18(1) of the Superior Courts Act[3] - not be suspended pending the determination of an appeal to the Supreme Court of Appeal.

[2] The court a quo made the order that has been brought on appeal consequent upon an application by the applicants in terms of s 18(3) of the Superior Courts Act.[4] The respondents are exercising the automatic right of appeal against that order conferred by s 18(4)(ii). This court is enjoined by s 18(4)(iii) to deal with the appeal as ‘a matter of extreme urgency’. Section 18(4)(iv) provides that the order of the court a quo is automatically suspended pending the outcome of this appeal. The nature of the discretion entailed in making an order in terms of s 18(3) is a wide one. An appellate court is therefore able to substitute its finding for that of the court a quo if it is convinced, for reasons founded in law or predicated on a different finding on the facts, that the application should have been decided differently. It is unfettered by the limitations that would attend its ability to interfere if the decision of the court a quo had been made in the exercise of a discretion in the true or narrow sense. [5]

[3] It is appropriate, before dealing with the merits of the appeal, to sketch the litigious backdrop to the matter. That will also afford the opportunity to mention the relevant statutory provisions that bear centrally on the questions in issue in the principal case. Consideration will be given in that context to the approach in principle to be adopted by the courts to applications in terms of s 18(3) of the Superior Courts Act.

[5] The facilities are currently assets of the Western Cape Government Department of Education. The Department is in the process of ‘repurposing’ all but one of these facilities (Ottery) for use as schools for children with special needs. The applicants contended that the resultant closure of the facilities as child and youth care centres meant that the ability to house children in need of care and protection close to their families was being compromised, with prejudicial consequences for the

children’s prospects of successful reintegration into society. It allegedly also meant that children received into secure care for reasons unconnected to involvement in criminal activity were having to be housed in allegedly prison-like secure care facilities at Outeniqua, Vredelus, Horizon and Clanwilliam. The secure care centres have been designed and equipped to house (or ‘physically contain’ as the Children’s Act puts it) children who have been sentenced under the Child Justice Act 75 of 2008, or are awaiting trial and sentencing under that Act. It was alleged that this resulted in children who could otherwise have been housed in the facilities that are being ‘repurposed’ being exposed to the insidious influence of criminal and gang-related subcultures.

[6] The ‘schools’ in question had been formally closed in terms of notices published by the then Western Cape MEC for Education in terms of the Western Cape Provincial School Education Act 12 of 1997 in 2000, long before the commencement of the Children’s Act in April 2010. Notwithstanding the closure notices, the facilities had, however, continued in use as de facto ‘child and youth care centres’, to use the language of Children’s Act. The evidence suggested that the child and youth care centre functions at all but one of the facilities (the Ottery Youth Care and Education Centre) had been wound down progressively since about 2010. There were only 8 children placed on an ‘in need of care and protection’ basis at Wellington when the respondents’ answering papers in the principal case were delivered, and none at Eureka and Die Bult. The last-mentioned two centres had therefore ceased to function even as de facto child and youth care centres by the time the application in the principal case was heard. Die Bult Centre had already been

converted for use as a secondary school for children with special needs.

[7] The Children’s Act ordained that pre-existing government children's homes, places of safety, secure care facilities, schools of industry and reform schools became child and youth care centres with effect from the commencement of the Act. It also prescribed that former schools of industry and reformatories under the administration of provincial departments of education had, within two years of the commencement of the Act (1 April 2010), to be transferred to be administered by the respective provincial departments of social development.[8] The Act thus requires youth and care centres to be the responsibility of the provincial departments of social development, with the departments of education being responsible only for the provision of education to the children who are housed there.[9] As matters stand, the facilities in issue in this case are being administered by the provincial Department of Education; and their respective staff complements are employees of that department, not the provincial Department of Social Development. It is the declared intention of the Department of Education to use as many as possible of the current staff complements at the facilities in the schools for children with special needs that it intends to establish there.

[8] The Children’s Act recognises the practical importance for the purposes of achieving its objects of the maintenance of a spread of centres throughout the country and the determination of the range of therapeutic programmes to be available in them. To that end it prescribes that the national Minister of Social Development is required to develop ‘a comprehensive national strategy aimed at ensuring an appropriate spread of child and youth care centres throughout the Republic providing the required range of residential care programmes in the various regions’. The Minister is required to do so ‘after consultation with interested persons and the Ministers of Education, Health, Home Affairs and Justice and Constitutional Development’.[10]

[9] The provincial MECs for Social Development are required by the Children’s Act, within the aforementioned national strategy developed by the national Minister, to provide for a provincial strategy aimed at ‘the establishment of an appropriate spread in the province of properly resourced, co-ordinated and managed child and youth care centres providing the required range of residential care programmes’. The MECs are also required to maintain a record of all available child and youth care centres in the province concerned and of the therapeutic programmes designed for the residential care of children outside the family environment offered by each centre.[11] Various types of therapeutic programmes contemplated in terms of the Act are set out in s 191(2) of the Children’s Act.[12] Other types of programme that may be offered at child and youth care centres are described in s 191(3).[13]

[10] It was common ground in the court a quo that the national government had failed to develop the strategy prescribed in terms of s 192(1) of the Children’s Act, and that it had consequently not been possible for the provincial departments of social development to draw up the provincial strategies contemplated in terms of s 192(2). Paragraphs (i) and (ii) of the court a quo’s order, which directed the national government and the Western Cape provincial government to develop the required strategies within the periods stipulated by the court have not been challenged, and are not subject of the appeal currently pending before the Supreme Court of Appeal with leave granted by the court a quo.

[11] In the result, the national Minister of Social Development, who was the fifth respondent in the principal proceedings, was bound by paragraph (i) of the order in the principal proceedings to produce the national strategy by the end of February 2016, and the first respondent, by paragraph (ii) of the order, to provide the provincial strategy within four months of the date upon which the national strategy was produced. Those paragraphs were plainly, and quite appropriately in my respectful view, directed at making the national and provincial authorities comply with their statutory duty to give attention to the number and spread of child care centres and the programmes to be available at them. The required administrative determination of those questions will address the fundamental concerns upon which the applicants brought the principal case. There was no evidence before us as to whether paragraph (i) of the order has been complied with, and, if not, what the applicants had done about it. Upon enquiry, we were informed by the applicants’ counsel that paragraph (i) of the order had not been complied with and that no steps have as yet been initiated by the applicants to bring the fifth respondent to account for the apparently unexplained non-compliance with the order.

[12] Paragraphs (iii) to (vi) of the order made by the court a quo in the principal case provided as follows:

(iii) It is declared that in accordance with section 196(1)(d) of the Children’s Act,[[14]] from 1 April 2010, Ottery Youth Centre in Ottery in the Metro South Education District (“Ottery Centre”), Die Bult Jeugsentrum in George in the Eden and Central Karoo Education District (“Die Bult Centre”) and Wellington Youth Centre in Wellington in the Cape Winelands Education District (“Wellington Centre”) are respectively regarded as having been established in terms of Section 195 of the Children’s Act as a child and youth care centre providing a residential care programme referred to in section 191(2)(i) of the Children’s Act [[15]];

(iv) It is declared that in accordance with section 196(1)(e) of the Act [[16]], from 1 April 2010, Eureka Jeugsentrum in Groot Eiland in the Cape Winelands Education District (“Eureka Centre”) is regarded as having been established in terms of section 195 of the Children’s Act as a child and youth care centre providing a residential care programme referred to in section 191(2)(j) of the Children’s Act [[17]].

(v) It is declared that from 1 April 2012, Die Bult Centre, Eureka Centre, Ottery Centre and Wellington Centre became the responsibility

of the Second Respondent, which responsibility includes, but is not limited to:

(a) Being responsible for the possession, use and upkeep of the physical infrastructure of each child and youth care centre; and

(b) Ensuring that each child and youth care centre is properly resourced, co-ordinated and managed in compliance with its obligations in terms of the Children’s Act.

(vi) The Second Respondent is directed to forthwith consider afresh the placements of those children who have been placed in terms of sections 156(1)(h) [[18]] and 158 of the Act [[19]] at the secure care child and youth care centres at Outeniqua, Vredelus, Horizon and Clanwilliam and who are still so placed.

(The ‘second respondent’ is the Department of Social Development, Western Cape.)

[13] The order by the court a quo that paragraphs (iii), (iv) and (vi) of its order in the principal case should not be suspended pending the appeal to the Supreme Court of Appeal excluded Die Bult Centre. This was because the applicants accepted that that facility had already effectively been ‘repurposed’ for the education of children with special needs; 361 children, including 178 residential learners, were already accommodated there for that purpose.

[14] The Ottery Youth Centre was also not affected by the order made by the court a quo in terms of s 18(3) of the Superior Courts Act because the respondents had agreed that that centre would continue to be used as a child and youth care centre for the time being, and that the position would not change save on 12 months’ notice to the applicants. Indeed, the indications are that steps are being taken for the formal transfer of that facility to the Department of Social Development as contemplated in terms of the Children’s Act.

[15] The court a quo did not accede to the applicants’ prayer that paragraph (v) of the order in the principal case should be effective

pending the appeal. It did not explain why it did so. The applicant’s counsel suggested the omission may have been per incuriam. If it was in error, the applicants do not appear to have done anything to have it corrected. It may be, however, that the court was concerned about imposing the budgetary responsibility for the physical maintenance of the facilities on the Department of Social Development pending the determination of appeal, which would be a necessary implication of that part of the order. If that was the reason, it was anomalous because the effect of paragraphs (iii) and (iv) of the order, which deemed the centres to have been established as child and youth care centres in terms of s 195 of the Children’s Act, carried with it a duty on the MEC for Social Development, ex lege, to establish and operate the centres from money appropriated by the relevant provincial legislature.[20] If effect is to be given to ss 195 and 196 in respect of the facilities in issue, and they are to be run by the Department of Social Development, it will be necessary for that Department to provide the personnel and funding to run them.

[16] Section 18(1)-(3) of the Superior Courts Act regulates a process established in the common law that was, until recently, regulated procedurally in terms of rule 49(11) of the Uniform Rules. (The relevant substantive law was not regulated in terms of the Supreme Courts Act 59 of 1959, which was the statutory predecessor of the Superior Courts Act, notwithstanding that it had previously been regulated in terms of preceding legislation such as ss 36 and 39 of the Transvaal Administration of Justice Proclamation, 14 of 1902 and s 50 of the Royal Charter of Justice of 4 May 1832. Hence, during the currency of the 1959 Act the applicable substantive law was the common law.)

[17] The position under the common law was described by De Villiers JA in Reid and Another v Godart and Another 1938 AD 511 at 513 as follows: ‘Now, by the Roman-Dutch Law the execution of all judgments is suspended upon the noting of an appeal; that is to say, the judgment cannot be carried out, and no effect can be given thereto, whether the judgment be one for money (on which a writ can he issued and levy made) or for any other thing or for any form of relief granted by the Court appealed from. … The foundation of the common-law rule as to the suspension of a judgment on the noting of an appeal, is to prevent irreparable damage from being done to the intending appellant, whether such damage be done by a levy under a writ, or by the execution of the judgment in any other manner appropriate to the nature of the judgment appealed from’.

[18] The position that obtained under the Supreme Court Act, 1959, was summarised by Corbett JA in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A), at 544-5, as follows:

At the outset it should be stressed that the Act repealed various Union and pre-Union statutes which made provision for the granting of leave to execute a Superior Court judgment pending an appeal and did not, itself, substitute any similar provision. Two consequences flow from this. Firstly, since there is now no statutory provision relating, inter alia, to applications for leave to execute a Superior Court judgment pending an appeal to the Appellate Division, the common law would apply thereto…. Rule 49 (11) does not appear to add to, or detract from, the common law position.

Whatever the true position may have been in the Dutch Courts, and more particularly the Court of Holland …, it is today the accepted common law rule of practice in our Courts that generally the execution of a judgment is automatically suspended upon the noting of an appeal, with the result that, pending the appeal, the judgment cannot be carried out and no effect can be given thereto, except with the leave of the Court which granted the judgment. To obtain such leave the party in whose favour the judgment was given must make a special application. … The purpose of this rule as to the suspension of a judgment on the noting of an appeal is to prevent irreparable damage from being done to the intending appellant, either by levy under a writ of execution or by execution of the judgment in any other manner appropriate to the nature of the judgment appealed from. … The Court to which application for leave to execute is made has a wide general discretion to grant or refuse leave and, if leave be granted, to determine the conditions upon which the right to execute shall be exercised (see Voet, 49.7.3; Ruby's Cash Store (Pty.) Ltd. v Estate Marks and Another, [1961 (2) SA 118 (T)] at p. 127). This discretion is part and parcel of the inherent jurisdiction which the Court has to control its own judgments (cf. Fismer v Thornton, 1929 AD 17 at p. 19). In exercising this discretion the Court should, in my view, determine what is just and equitable in all the circumstances, and, in doing so, would normally have regard, inter alia, to the following factors:

(1) the potentiality of irreparable harm or prejudice being sustained by the appellant on appeal (respondent in the application) if leave to execute were to be granted;

(2) the potentiality of irreparable harm or prejudice being sustained by the respondent on appeal (applicant in the application) if leave to execute were to be refused;

(3) the prospects of success on appeal, including more particularly the question as to whether the appeal is frivolous or vexatious or has been noted not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose, e.g., to gain time or harass the other party; and

(4) where there is the potentiality of irreparable harm or prejudice to both appellant and respondent, the balance of hardship or

convenience, as the case may be.

[19] The effect of s 18(1)-(3) of the Superior Courts Act received detailed consideration by Sutherland J in Incubeta Holdings (Pty) Ltd and Another v Ellis and Another 2014 (3) SA 189 (GJ). At the time, rule 49(11), which provided:

Where an appeal has been noted or an application for leave to appeal against or to rescind, correct, review or vary an order of a court has been made, the operation and execution of the order in question shall be suspended, pending the decision of such appeal or application, unless the court which gave such order, on the application of a party, otherwise directs.

was still on the rule book. The sub-rule has since been deleted.[21] The learned judge noted that it had been argued on behalf of the respondents in the application in terms of s 18(3) of which he was seized that s 18 had introduced ‘a fresh test for leave to put into operation and execute an order pending the appeal processes and that judicial authority that predates the section has been overtaken by its enactment’. He proceeded on the basis that it was that proposition which called for interrogation.[22] He did so apparently on the understanding that the case was ‘about the application of rule 49(11) of the Uniform Rules of Court and the impact upon that rule by the provisions of s 18 of the Superior Courts Act’.[23] The only observations made in the judgment in the latter regard appear to have been that s 18, unlike rule 49(11), does not make any provision in respect of applications to rescind, correct, review or vary an order of a court [24] and that the sub-rule, consistently with the new Act, implied that an order putting a judgment subject to a pending appeal into effect would be given only exceptionally.[25] I agree with that, but in my judgment, rule 49(11) plays no role in the interpretation of s 18. For one, it has been deleted; and moreover, as observed in the passage from the judgment in South Cape Corporation quoted above, the sub-rule did ‘not appear to add to, or detract from, the common law position’. The pertinent

enquiry concerns the extent, if any, to which s 18 has altered the position at common law.

[20] Sutherland J treated of the exceptionality requirement in s 18(1), at para 21-22 of Incubeta Holdings, as follows:

[21] The context relevant to s 18 … is the set of considerations pertinent to a threshold test to deviate from a default position, i.e. the appeal stays the operation and execution of the order. The realm is that of procedural laws whose policy objectives are to prevent avoidable harm to litigants. The primary rationale for the default position is that finality must await the last court's decision in case the last court decides differently….

[22] Necessarily, in my view, exceptionality must be fact-specific. The circumstances which are or may be ‘exceptional’ must be derived from the actual predicaments in which the given litigants find themselves. I am not of the view that one can be sure that any true novelty has been invented by s 18 by the use of the phrase. Although that phrase may not have been employed in the judgments, conceptually the practice as exemplified by the text of rule 49(11), makes the notion of the putting into operation an order in the face of an appeal process a matter which requires particular ad hoc sanction from a court. It is expressly recognised, therefore, as a deviation from the norm, i.e. an outcome warranted only ‘exceptionally’.

Those remarks were made with reference to the learned judge’s appreciation of the effect of rule 49(11), then still in force. I am in respectful agreement with the analysis. It applies equally, I think, in the context of the common law. Any order permitting the execution of a judgment pending an appeal would constitute permission to deviate from the ordinary incidence of the common law. The judgments in which such an order has been considered consistently show a consciousness of the exceptionality involved.

[21] I also agree with Sutherland J’s observation that it is the requirement, in terms of s 18(3), that a party making application in terms of that provision must prove ‘the presence of irreparable harm to the applicant/victor, who wants to put into operation and execute the order; and the absence of irreparable harm to the respondent/loser, who seeks leave to appeal’ that introduces ‘a new dimension’.[26] But even there, the novelty is relatively subtle in my view.

[22] A court determining such an application on purely common law principles would have been centrally concerned not to defeat the main object of the rule concerning automatic suspension, namely to avoid irreparable prejudice to the loser in the carrying out of the judgment before the appeal is decided. Any applicant bringing such an application at common law would have had to address that concern. It would have done so by seeking to demonstrate that the other party would not suffer irreparable harm if the court were to grant the relief sought. In respect of judgments sounding in money that was invariably done by tendering security for its repayment should the judgment be reversed on appeal.

[23] The requirement in s 18(3) that the applicant must prove that he or she will suffer irreparable harm if the court does not so order is also no more than what would ordinarily be required under the common law to justify the granting of the exceptional relief. The words ‘in addition’ in the sub-section are therefore puzzling. They might suggest that an applicant is now required also to show other grounds of exceptionality in order to succeed. I doubt that this was the intention. I think it was intended that other grounds of exceptionality, whatever their nature,[27] would not by themselves suffice, absent satisfaction of the double-edged irreparable harm requirements stipulated in the sub-section.

[24] The essence of the novelty introduced by s 18(3) is - as Sutherland J, with respect correctly, identified - the relative fettering of the court’s freedom, for the purpose of deciding the application, to be able to weigh what Corbett JA referred to as factors (1) and (2) in the passage from South Cape Corporation quoted above according to what might be considered just and equitable on the facts of the given case. Section 18(3) has introduced an absolute threshold that did not exist at common law: the applicant must prove that the loser will not suffer irreparable harm if the application is granted, and that it will suffer such harm if the application is refused. If it fails to do so, the application cannot succeed whatever the equities of the case might be. As Sutherland J observed in Incubeta Holdings, ‘Two distinct findings of fact must now be made, rather than a weighing-up to discern a “preponderance of equities”.’ There is thus no longer any scope for factor (4) in Corbett JA’s description of the nature of the court’s exercise of its discretion. There is also no longer any basis to regard the incidence of the onus as debatable; the onus is now unambiguously on the applicant.[28]

[25] Counsel for the respondents argued in their heads of argument that the requirements of s 18(3) set a higher standard for what needs to be proved in respect of irreparable harm than the ‘the potentiality of irreparable harm or prejudice’ referred to in South Cape Corporation. I do not agree. In my view, the provision does not require proof that there is a certainty that irreparable harm will be suffered. Proof on a balance of probabilities that there is a likelihood that such harm will be suffered will suffice. That is indistinguishable from establishing ‘the potentiality’ of such harm.

[26] It is important to emphasise, as counsel on both sides acknowledged, that notwithstanding their introduction of an absolute threshold in the sense just discussed, the provisions of s 18 do not result in the exercise of judicial discretion in the wide sense[29] being excluded in the determination of applications for leave to execute or for orders ad factum praestandum to operate pending an appeal. Even if what I call the double-edged requirements on irreparable harm and that of exceptionality are satisfied, the court retains ‘a wide general discretion to grant or refuse leave and, if leave be granted, to determine the conditions upon which the right to execute shall be exercised’.[30] Considerations of what is just and equitable in the peculiar circumstances remain relevant in that context.

[27] Differing in this respect from the approach propounded in Incubeta Holdings,[31] I consider, consistently with the view expressed by Corbett JA in South Cape Corporation at 545E, that the court’s assessment of the prospects of success in the appeal (factor (3) in South Cape Corporation) remains a relevant factor in the consideration. Indeed, counsel on both sides in the current matter were in agreement with that proposition. It follows that the less sanguine a court seized of an application in terms of s 18(3) is about the prospects of the judgment at first instance being upheld on appeal, the less inclined it will be to grant the exceptional remedy of execution of that judgment pending the appeal. The same quite obviously applies in respect of a court dealing with an appeal against an order granted in terms of s 18(3). The position is very much akin to that which pertains when interim interdictory relief pending a judicial review is being considered.

[28] Sutherland J appears to have considered that the prospects of the appeal do not form part of the consideration because leave to appeal inherently carries in it an acceptance that there was a reasonable prospect the appeal might succeed. That is indeed so in most cases,[32] but even in such matters there is scope for degrees of conviction on the likelihood of such prospect being realised. This is especially so if the court deciding the s 18(3) application is differently constituted from that which granted leave to appeal; which will always be the case when an order made in terms of an application in terms of s 18(3) is taken on automatic appeal. Moreover, as the facts in Incuteba Holdings illustrate, an application in terms of s 18(3) may arise for determination before an application for leave to appeal is heard or decided; alternatively, after an application for leave to appeal has been refused and a further application for leave has been noted to the Supreme Court of Appeal, but not yet determined.

[29] When considering the prospects of the case on appeal in the current matter the following features of the principal case are immediately striking: (i) the inconsonance of the orders made by the court with the relief sought in terms of the notice of motion and (ii) the degree to which paragraph (vi) of the order read with paragraph (iii) and (iv) involved the court a quo in prescribing to the second respondent how it should order its operations and discharge its functions in terms of the Children’s Act. I shall revert to the second feature in more detail later, but the effect of those orders taken together (including paragraph (v)) was anomalous in the context of the relief expressly sought in the notice of motion that by implication was refused in the judgment in the principal case.

[30] There were 24 paragraphs in the notice of motion as opposed to the seven paragraphs in the order that was granted. Paragraphs 3, 4 and 11 of the notice of motion corresponded essentially with the relief granted in terms of paragraphs (i) and (ii) of the order. Paragraphs 5-9 corresponded with paragraphs (iii), (iv) and (v) of the order. The court a quo did not deal with the questions in its judgment in the principal case, but it did not make any orders consistent with the relief sought in paragraphs 10 and 12-18 of the notice of motion or grant a structural interdict as sought in terms of paragraphs 19-22 of the notice of motion. Notably, there is no equivalent of paragraph (vi) of the order to be found in the relief sought in the notice of motion. The applicant’s counsel stated during argument, however, that paragraph (vi) of the order was a ‘watered-down’ version of the relief sought in terms of paragraph 15 of the notice of motion; viz:

[An order d]irecting the Second Respondent forthwith to remove all children, not sentenced or awaiting trial but placed in terms of the Act, and who have been placed at the secure care child and youth care centres at Outeniqua, Vredelus, Horizon and Clanwilliam (“the secure care facilities”), from such secure care facilities, and place them in accordance with sections 158(3) and 158(4) of the Act, at either Otterey Centre or at Wellington Centre, and should the latter two centres become fully occupied, then to appropriate temporary safe care managed by the Second Respondent and thereafter in terms of section 158(3) and 158(4) of the Act to a child and youth care centre offering the respective residential care programme which a court has determined for each of the children so removed, but not to secure care facilities mentioned above

Accepting that explanation affords confirmation that paragraph (vi) was intended to be a watered-down version of the relief sought by the applicants for an order directing the second respondent how to fulfil its relevant functions in terms of the Children’s Act.

[31] The Children’s Act vests a wide discretion in the provincial departments of social development in respect of the discharge of those functions. As mentioned, it is the responsibility of the departments to determine where care centres should be situated and what programmes should be offered at each of them. This implies that the departments decide whether to open new centres or close existing ones. In terms of s 158 of the Children’s Act, the courts determine whether a child must be received at a centre and what therapeutic programmes it must undergo, but it is the provincial head of the department who is charged with determining, with reference to the factors described in sub-sections (3) and (4) and ‘any other relevant factors’, in which centre the child will be placed. The relief sought in terms of paragraph 15 of the notice of motion would therefore

significantly trench on the department’s discretionary powers in a number of material respects. The ‘watered-down’

version is essentially to the same effect. Construed in the context of the judgment in the principal case (cf. Firestone South Africa (Pty) Ltd v Genticuro A.G. 1977 (4) SA 298 (A) at 304D-F), it implies the re-opening of the centres that have been closed and the placement there of some of the children currently accommodated in secure care at the centres which are in operation.

[32] Section 18(4)(i) of the Superior Courts Act prescribes that a court which makes an exceptional order pursuant to an application in terms of s 18(3) ‘must immediately record its reasons for doing so’. The following reasons may be distilled from the court a quo’s judgment in the application for leave to enforce (I have endeavoured to identify the essence of the several paragraphs of the judgment of 2 March 2016 by using the learned judge’s own words):

a) It is clearly ‘desirable that a child found to be in need of care should at all times be placed in a facility if necessary, which promotes family contact and ultimate reunification’. (para 8)

b) It is clearly undesirable that children ‘such as these’ (i.e. ‘children in need of protection and … not being held because of criminal activity’) be placed in facilities that are structured as high security facilities. (para 9)

c) ‘It is contrary to interest of these children to be placed with awaiting trial prisoners who would exhibit subcultural rituals and norms which would commonly result in the induction of children into gangs….It can never be in the best interest to place children in need of care and protection with children who are sentenced, awaiting trial or sentencing.’ (para 10)

d) ‘[E]very child has rights as set out in Section 28 of the Constitution. The State bears the obligation to respect, protect and promote and fulfil those rights.’ (para 12)

e) ‘[A] child found to be in need of care would carry a stigma if he or she was housed in a facility together with children who have indulged in criminal activity and require rehabilitation’. (para 13)

f) ‘Since the [principal judgement dated 31 August 2015] has become the subject of an appeal, it is clear from the conduct of the respondent that the repurposing will continue. As indicated in [the principal] judgment…placing these children together with awaiting trial prisoners constitutes a flagrant disregard of Section 12 of [the] Constitution. … Placing children in need of care in that environment amounts to an infringement of their constitutional right to security and freedom from violence. Furthermore, placing such children with those who have transgressed the law, results in the deprivation of their liberty and arguably [?constitutes] a form of detention without trial’. (para 14)

g) ‘[T]he period which would elapse…until a judgment on appeal does not merely represent a random passage of time. It portrays a window in the life of each and every child found in need of care and that stands to be affected by it. … Further harm and risk cannot be chanced and [the] court would be well justified in ensuring that an order be granted to safeguard their interests pending the finalisation of the intended appeal’. (para 15)

h) ‘[The] court, as upper guardian of all minor children, has the power to prescribe the conditions relating to the care and control of children in need of care…[F]or the purposes of determining [the] application, the aforesaid power is certainly not limited’. (para 16)

i) The respondents would not suffer irreparable harm were the orders to be implemented immediately. Infrastructural changes and the transfer of staff might carry a financial cost, but ‘the notion of irreparable harm is understood in law to be the type of harm that cannot be corrected or cured through monetary compensation or that the prior conditions cannot be put back to the way they were’. The court held that it could not ‘in these circumstances find that the harm which would be suffered by the Respondent[s] would be irreparable’. (Emphasis in the original.) (para 17)

j) ‘For these reasons [i.e. those summarised in the paragraphs of the judgment identified above] irreparable harm and prejudice will be suffered by children in need of care if the provisions of the order … are not given effect to pending finalisation of an appeal’. (para 18)

[33] I do not think it is necessary for present purposes to canvas all those reasons individually. It is evident that the principal reason why the court a quo considered that the exceptional course of making its orders effective notwithstanding the pending appeal for which it had granted leave was appropriate was its view that housing children who were subject to secure care therapeutic programmes for involvement in criminal activity in the same facilities that housed children that were in secure care programmes for being uncontrollable was unconstitutional and that every passing day during which such an unconstitutional regime prevailed occasioned an intolerable infringement of the basic rights of the second mentioned category of children. It is not the function of this court to in any manner pre-empt the appeal in the principal case, but it is unavoidable for current purposes, having regard to the basis given for the interim order, that we should consider how well-grounded the court a quo’s reason was in the context of the evidence and the applicable statutory provisions.

[34] The evidence in the proceedings in the principal case, having been instituted by the applicants claiming final relief on motion, fell to be assessed in accordance with the principles rehearsed in Plascon-Evans Paints (Tvl) Ltd. v Van Riebeck Paints (Pty) Ltd. [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634-5. Accordingly, the facts alleged by the respondents, fell to be accepted for the purposes of deciding the case, unless they could be rejected on the papers as palpably far-fetched or unfounded. As to the alleged exposure of children undergoing residential therapeutic programmes to children in secure care because they were sentenced offenders or awaiting trial

on criminal charges, the principal answering affidavit delivered by the respondents in the principal proceedings[33] contained the following averments:

12. The Respondents have repeatedly advised the Applicants that children found by the courts to be in need of care and protection due to behavioural problems, who are placed in the same child and youth care

centres with children who are awaiting trial or have been sentenced, are accommodated separately and attend separate programmes during the day.

13. The Applicants were further advised that children in need of care and protection, without behavioural problems are not accommodated in the same youth and care centres as children who are awaiting trial or have been sentenced.

The correctness of the advice given by the respondents to the applicants was not rebutted on the papers. All that the applicants averred (per John Smyth QC) was that on an inspection of the Horizon facility it had been difficult to see how the different groups of children could be kept separate.

[35] The factual premise for the primary reason offered by the court a quo for the exceptional order made by it had thus not been established in the principal proceedings. I venture that this may cause the applicants a serious difficulty at the appeal. It was also in any event not open to the court a quo, in the absence of any constitutional challenge to the provisions of the Children’s Act, to seek by its order to override the provisions of the statute by imposing its own preference. Section 194 of the Act provides for the determination by the Minister of Social Development of national norms and standards for child and youth care centres by regulation after consultation with interested persons and the Ministers of Education, Health, Home Affairs and Justice and Constitutional Development. In terms of s 194(2)(n) such norms and standards should, amongst other matters, relate to ‘measures for the separation of children in secure care programmes from children in other programmes’. That and other provisions of the statute indicate clearly that a diversity of therapeutic care programmes may be offered at a particular child and youth care centre, including programmes entailing secure care, as well as those that do not. All that is required, is that there should be a separation within a particular facility between children in secure care and those not in secure care. There are three identifiable categories of secure care children. There is no provision that children in those three categories should be kept separately. As it is, however, the evidence referred to earlier established that in the Western Cape there is a more fundamental separation than that required in terms of the legislation: Children in secure care are housed in separate facilities from children not in secure care; and the different categories of children in secure care (viz. those contained in secure care on account of behavioural, psychological and emotional difficulties (s 191(2)(i)) and those

contained because they are awaiting trial or sentence (s 191(2)(h)) or in terms of the Child Justice Act (s 191(2)(j))) are housed separately in the facilities in which secure care is provided).

[36] Paragraph (vi) of the order of the court a quo in the principal proceedings is directed at obtaining the placement at separate centres of children contained in secure care on the basis of having displayed criminal behaviour and those so contained because the parent or care-giver cannot control the child. The Act provides no basis for placement to be effected on that basis. On the contrary, as I have observed, the basis for separation contemplated by the Act is between children physically contained[34] in secure care and those received into residential care to undergo therapeutic programmes in which they are not subject to physical

containment.

[37] Insofar as the court’s concern about the distribution of child and youth care centres in relation to the objects of community and family contact and reintegration into society, these are matters to which the strategies required in terms of s 192 of the Children’s Act are directed. It has been remiss of the national Minister not to have produced a strategy, but paragraphs (i) and (ii) of the court a quo’s order, which, as mentioned, are not being impugned on appeal, are in effect and fall to be complied with within a short period of time. The court’s concerns should be addressed by those strategies. If the strategies that are developed should prove to be inadequate to uphold the constitutional rights of the affected children, the proper remedy will be to take them on judicial review. It does not seem just and equitable to anticipate the process, particularly

having regard to the effect of paragraphs (i) and (ii) of the order and the short period involved before the expedited appeal.

[38] As to the implication in the court a quo’s order that additional centres should be taken back into use, the nature of the

inter-ministerial and other interested parties consultative process prescribed in terms of s 191(1) of the Children’s Act, to which the court a quo made no reference, highlights the polycentric and policy-laden character of the decision-making process concerning the distribution of child and youth care centres throughout the country and which programmes should be provided at them. The applicant’s counsel submitted that it had not been lawfully open to the provincial government to close the facilities as care centres before a strategy as contemplated in terms of the Act had been adopted. The court a quo did not grant the relief in the principal application that had been sought on that premise in terms of paragraph 13 of the notice of motion.[35] It is not necessary to decide the point, but the position does not appear to me to be as clear as counsel would have it. It is well established that courts should tread warily for reasons of constitutional policy in making orders that trench on the

decision-making powers of the executive; a fortiori when the decisions in question are polycentric and policy-laden in nature; see, for example, National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC), at para 26-27 and 47; International Trade Administration Commission v SCAW SA (Pty) Ltd 2012 (4) SA 618 (CC), at para 90-112 and Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490 (CC) at para 46-48.

[39] It is not constitutionally appropriate for a court to make a decision of its preference in respect of matters that valid legislation has entrusted to another arm of government. It should restrict itself to making orders directed to compel the other arm of government to act within the law by complying with the Constitution or the applicable legislation, rather than prescribing how the executive should fulfil its functions within the law. This is especially so when the functions in issue entail polycentric

and policy-laden decision making. I appreciate that the cases cited in the preceding paragraph concerned interim interdicts and judicial review, but the principles applied in those contexts apply equally in the context of a mandatory order in terms of s 18(3). The effect of the order made by the court a quo is indistinguishable from that of a positive interim interdict pendente lite. The effect of implementing paragraph (iii), (iv) and (vi) of the order in the principal case would, for practical purposes, be the equivalent of the implementation of a strategy of the nature contemplated by s 192. If carried out, however, its implementation would occur without any of the consultative processes that the legislature has indicated should precede it.

[40] The issue of time frames also appears to have weighed heavily with the court a quo in making the relevant paragraphs of its order of immediate effect notwithstanding the pending appeal. It appears to have considered that not a day could go by without the affected children suffering irreparable prejudice. I have already indicated that whether what the court a quo considered to be prejudicial is legally cognisable on the facts is uncertain. But in any event, the question of urgency has to be assessed holistically with due regard to the context. The immediate context shows that the principal proceedings were instituted as a matter of alleged urgency on 1 December 2013, the matter came to hearing on 24 February 2015 and, as mentioned, judgment was given on 31 August 2015. Leave to appeal was granted on 14 October 2015. The application in terms of s 18(3) was instituted on 18 December 2015, heard on 9 February 2016 (having been postponed to that date by agreement on 22 December 2015), and decided on 2 March 2016. The court a quo was aware that application had been made to the Supreme Court of Appeal for a preferential set down of the appeal. The date of 17 May 2016 has since been allocated for that hearing.

[41] It is evident therefore that the principal application was not pressed with urgency and it was more than two months after leave to appeal had been granted that the applicants were moved to apply for an order in terms of s 18(3). The national strategy had been outstanding for nearly three years and was due to have been produced pursuant to those provisions of the court a quo’s orders that all parties accept were properly made. What considerations of exceptionality impelled an immediate implementation of the other provisions of the court’s order when matters had dragged on for more than five years since the commencement of the Children’s Act and the facilities in issue have effectively ceased to be centres for child and youth care?

[42] The reason for the timing of the application in terms of s 18(3) given in the supporting affidavit was the discovery in early December 2015 that the fourth respondent intended to proceed with the ‘repurposing’ of the Eureka and Wellington facilities.

The repurposing is what is alleged to have been the basis for the applicants’ decision to apply urgently for an order in terms of s 18(3) of the Superior Courts Act. Up to that stage there was no contention that the passing of each day in the lead-up to the appeal implied irreparable harm to the affected children. But it is common cause that the repurposing is reversible. The programme of repurposing thus did not provide a proper basis to institute the proceedings for exceptional relief. What is more, the court a quo had declined in the principal proceedings to make an order as sought in paragraph 13 of the notice of motion ‘declaring the decisions to close and/or the intended closures of [the facilities] to have been unlawful or unconstitutional’.[36] When pressed, counsel for the applicants conceded before us that if the impetus for seeking relief in terms of s 18(3) of the Superior Courts Act had been, as alleged, the continued repurposing of the facilities, then the proper remedy would have been rather to seek interim prohibitory interdictal relief to preserve the status quo, not to seek the implementation of orders which directed a change to the status quo. It does not matter that the applicant may have encountered difficulty in that regard in the context of the court a quo having withheld the equivalent relief sought on a final basis in terms of paragraph 13 of the notice of motion.

[43] In the context described in the previous paragraphs, the court a quo should in my view have recognised that the application was misconceived.

[44] It should also, in my view, have appreciated that implementing paragraph (vi) of the order in the principal case in any event would not necessarily result in any change to the current situation. That part of the order merely requires the reconsideration of some of the current placements. It does not determine an outcome or even provide a timescale within which such reconsideration should be completed. It does not exclude the possibility that such reconsideration should be delayed to take account of the national and provincial strategies, which would not be irrational. There was thus no weighty reason to consider that its immediate implementation was necessary in an exceptional sense.

[45] In my view these considerations detract from the notion that a sufficient degree of exceptionality to justify the order has been demonstrated.

[46] It is also relevant to appreciate that the orders made by the court a quo could not legitimately take the maintenance and operation of the facilities outside the auspices of the relevant provisions of the Children’s Act. Thus, in order to competently require certain facilities attached to the Department of Education to be taken into use as child and youth care centres, the court would have to direct the transfer of those facilities to the Department of Social Development. Before making such an order – and a fortiori making it effective notwithstanding a pending appeal – the court would have to take into account the logistical considerations involved. In the current case, as explained in the respondents’ answering papers, those would entail compliance with legislation such as the Public Finance Management Act, the Public Service Act, the Labour Relations Act and, as apparent from s 195 of the Children’s Act, the making of pertinent fiscal appropriations by the provincial legislature. It does not appear that the court a quo took these considerations into account in making the order that paragraphs (iii), (iv) and (vi) of its order of 31 August 2015 should be carried into immediate effect notwithstanding the pending appeal.

[47] For the reasons discussed I consider that the court a quo should not have granted the application in terms of s 18(3) of the Superior Courts Act and that the appeal must be upheld.

[48] In my view there should be no order as to costs in respect of the appeal or in the s 18(3) application. Misconceived as I consider the applicants to have been in seeking an order in terms of s 18(3) of the Superior Court Act, I am satisfied that they acted bona fide in seeking to protect and assert what they believed to the best interests and constitutional rights of children. It is well-established that parties should not be unduly discouraged by the chilling prospect of adverse costs orders from approaching the courts in matters in which infringements of the Bill of Rights are alleged to be involved; see Biowatch Trust v The Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC), at para 21-25.

[49] The following orders are made:

(a) The appeal is upheld.

(b) The orders made by the court a quo on 2 March 2016 are set aside and replaced by the following:

i. The application is dismissed.

ii. There shall be no order as to costs.

(c) Each party shall bear its own costs in the appeal.

A.G. BINNS-WARD

Judge of the High Court

C.M. FORTUIN

N.P. BOQWANA

APPEARANCES:

Appellants’ counsel: A. Katz SC

M. Adhikari

Appellants’ attorneys: State Attorney,

Cape Town

Respondents’ counsel I. Jamie SC

B Studti

A. Nacerodien

Respondents’ attorneys C&A Friedlander

[1] The first to fourth respondents in the court of first instance were the Minister of Social Development, Western Cape, the Department of Social Development, Western Cape, the Minister of Education, Western Cape, and the Department of Education, Western Cape, respectively.

[2] See Justice Alliance of South Africa and Another v Minister of Social Development, Western Cape and Others [2015] ZAWCHC 120 (31 August 2015); [2015] 4 All SA 467 (WCC). The relevant content of the order is set out in para [12], below.

[3] Section 18(1) of the Superior Courts Act provides: Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.

[3] Section 18(1) of the Superior Courts Act provides:

Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.

[4] Section 18(3) of the Superior Courts Act provides insofar as relevant: A court may only order otherwise as contemplated in subsection (1) …, if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.

[4] Section 18(3) of the Superior Courts Act provides insofar as relevant:

A court may only order otherwise as contemplated in subsection (1) …, if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.

[5] Cf. Knox D'Arcy Ltd and Others v Jamieson and Others [1996] ZASCA 58; 1996 (4) SA 348 (A), [1996] 3 All SA 669, at 360D-362F (SALR) and Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another 2015 (5) SA 245 (CC) at para 83-90.

[6] Section 196(1) of the Children’s Act provides as follows insofar as relevant: Existing government children's home, place of safety, secure care facility, school of industry and reform school (1) As from the date on which section 195 takes effect- …. (d) a government industrial school established in terms of section 33 of the Children's Protection Act, 1913 (Act 25 of 1913) and maintained as a school of industries in terms of the Child Care Act must be regarded as having been established in terms of section 195 as a child and youth care centre providing a residential care programme referred to in section 191(2)(i); and (e) a reformatory established in terms of section 52 of the Prisons and Reformatories Act, 1911 (Act 13 of 1911) and maintained as a reform school in terms of the Child Care Act must be regarded as having been established in terms of section 195 as a child and youth care centre providing a residential care programme referred to in section 191(2)(j).

[6] Section 196(1) of the Children’s Act provides as follows insofar as relevant:

Existing government children's home, place of safety, secure care facility, school of industry and reform school

(1) As from the date on which section 195 takes effect-

….

(d) a government industrial school established in terms of section 33 of the Children's Protection Act, 1913 (Act 25 of 1913) and maintained as a school of industries in terms of the Child Care Act must be regarded as having been established in terms of section 195 as a child and youth care centre providing a residential care programme referred to in section 191(2)(i); and

(e) a reformatory established in terms of section 52 of the Prisons and Reformatories Act, 1911 (Act 13 of 1911) and maintained as a reform school in terms of the Child Care Act must be regarded as having been established in terms of section 195 as a child and youth care centre providing a residential care programme referred to in section 191(2)(j).

[7] Section 191(2)(i) and (j) of the Children’s Act provide as follows: A child and youth care centre must offer a therapeutic programme designed for the residential care of children outside the family

environment, which may include a programme designed for- (i) the reception, development and secure care of children with behavioural, psychological and emotional difficulties; (j) the reception, development and secure care of children in terms of an order- (i) under section 29 or Chapter 10 of the Child Justice Act, 2008; (ii) in terms of section 156(1)(i) placing the child in a child and youth care centre which provides a secure care programme; or (iii) in terms of section 171 transferring a child in alternative care; . ‘Secure care’ is defined in s 1 of the Act to mean: the physical containment in a safe and healthy environment- (a) of children with behavioural and emotional difficulties; and (b) of children in conflict with the law.

[7] Section 191(2)(i) and (j) of the Children’s Act provide as follows:

A child and youth care centre must offer a therapeutic programme designed for the residential care of children outside the family

environment, which may include a programme designed for-

(i) the reception, development and secure care of children with behavioural, psychological and emotional difficulties;

(j) the reception, development and secure care of children in terms of an order-

(i) under section 29 or Chapter 10 of the Child Justice Act, 2008;

(ii) in terms of section 156(1)(i) placing the child in a child and youth care centre which provides a secure care programme; or

(iii) in terms of section 171 transferring a child in alternative care; .

‘Secure care’ is defined in s 1 of the Act to mean:

the physical containment in a safe and healthy environment-

(a) of children with behavioural and emotional difficulties; and

(b) of children in conflict with the law.

[8] Section 196(3) of the Children’s Act.

[9] Section 196 of the Children’s Act.

[10] Section 192(1) of the Children’s Act.

[11] Section 192(2) and (4) of the Children’s Act.

[12] Section 191(2) of the Children’s Act provides: A child and youth care centre must offer a therapeutic programme designed for the residential care of children outside the family environment, which may include a programme designed for- (a) the reception, care and development of children other than in their family environment; (b) the reception, care and development of children on a shared basis with the parent or other person having parental responsibilities; (c) the reception and temporary safe care of children pending their placement; (d) early childhood development; (e) the reception and temporary safe care of children to protect them from abuse or neglect; (f) the reception and temporary safe care of trafficked or commercially sexually exploited children; (g) the reception and temporary safe care of children for the purpose of- (i) observing and assessing those children; (ii) providing counselling and other treatment to them; or (iii) assisting them to reintegrate with their families and the community; (h) the reception, development and secure care of children awaiting trial or sentence; (i) the reception, development and secure care of children with behavioural, psychological and emotional difficulties; (j) the reception, development and secure care of children in terms of an order- (i) under section 29 or Chapter 10 of the Child Justice Act, 2008; (ii) in terms of section 156 (1) (i) placing the child in a child and youth care centre which provides a secure care programme; or (iii) in terms of section 171 transferring a child in alternative care; (k) the reception and care of street children; or (l) the reception and care of children for any other purpose that may be prescribed by regulation.

[12] Section 191(2) of the Children’s Act provides:

A child and youth care centre must offer a therapeutic programme designed for the residential care of children outside the family environment, which may include a programme designed for-

(a) the reception, care and development of children other than in their family environment;

(b) the reception, care and development of children on a shared basis with the parent or other person having parental responsibilities;

(c) the reception and temporary safe care of children pending their placement;

(d) early childhood development;

(e) the reception and temporary safe care of children to protect them from abuse or neglect;

(f) the reception and temporary safe care of trafficked or commercially sexually exploited children;

(g) the reception and temporary safe care of children for the purpose of-

(i) observing and assessing those children;

(ii) providing counselling and other treatment to them; or

(iii) assisting them to reintegrate with their families and the community;

(h) the reception, development and secure care of children awaiting trial or sentence;

(ii) in terms of section 156 (1) (i) placing the child in a child and youth care centre which provides a secure care programme; or

(iii) in terms of section 171 transferring a child in alternative care;

(k) the reception and care of street children; or

(l) the reception and care of children for any other purpose that may be prescribed by regulation.

[13] Section 191(3) of the Children’s Act provides: A child and youth care centre may in addition to its residential care programmes, offer- (a) the provision of appropriate care and development of children with disabilities or chronic illnesses; (b) therapeutic and developmental programmes; (c) the treatment of children for addiction to dependence-producing substances; (d) a programme for the treatment of children with a psychiatric condition; (e) a programme to assist a person with the transition when leaving a child and youth care centre after reaching the age of 18; or (f) any other service that may be prescribed.

[13] Section 191(3) of the Children’s Act provides:

A child and youth care centre may in addition to its residential care programmes, offer-

(a) the provision of appropriate care and development of children with disabilities or chronic illnesses;

(b) therapeutic and developmental programmes;

(c) the treatment of children for addiction to dependence-producing substances;

(d) a programme for the treatment of children with a psychiatric condition;

(e) a programme to assist a person with the transition when leaving a child and youth care centre after reaching the age of 18; or

(f) any other service that may be prescribed.

[14] See note 6, above.

[15] See note 12, above.

[16] See note 6, above.

[17] See note 12, above.

[18] Section 156(1)(h) and (i) of the Children’s Act provide: (1) If a children's court finds that a child is in need of care and protection the court may make any order which is in the best

interests of the child, which may be or include an order- …. (h) that the child be placed in a child and youth care centre selected in terms of section 158 which provides a secure care programme suited to the needs of the child, if the court finds- (i) that the parent or care-giver cannot control the child; or (ii) that the child displays criminal behaviour; (i) that the child receive appropriate treatment or attendance, if needs be at state expense, if the court finds that the child is in need of medical, psychological or other treatment or attendance; . (The reference to s 156(1)(i) in s 192(2)(j)(ii) of the Act – see note 12, above – appears to have been intended reference to s 156(1)(h).)

[18] Section 156(1)(h) and (i) of the Children’s Act provide:

(1) If a children's court finds that a child is in need of care and protection the court may make any order which is in the best

interests of the child, which may be or include an order-

(h) that the child be placed in a child and youth care centre selected in terms of section 158 which provides a secure care programme suited to the needs of the child, if the court finds-

(i) that the parent or care-giver cannot control the child; or

(ii) that the child displays criminal behaviour;

(i) that the child receive appropriate treatment or attendance, if needs be at state expense, if the court finds that the child is in need of medical, psychological or other treatment or attendance; .

(The reference to s 156(1)(i) in s 192(2)(j)(ii) of the Act – see note 12, above – appears to have been intended reference to s 156(1)(h).)

[19] Section 158 of the Children’s Act provides: Placement of child in child and youth care centre (1) A children's court may issue an order placing a child in the care of a child and youth care centre only if another option is not appropriate. (2) If a children's court decides that a child should be placed in the care of a child and youth care centre, the court must- (a) determine the residential care programme best suited for the child; and (b) order that the child be placed in a child and youth care centre offering that particular residential care programme. (3) The provincial head of social development in the relevant province must place the child in a child and youth care centre offering the residential care programme which the court has determined for the child, taking into account- (a) the developmental, therapeutic, educational and other needs of the child; (b) the permanency plan for the child which was considered by the court, and any instructions issued by the court with regard to the implementation of the permanency plan; (c) any other instructions of the court; (d) the distance of the centre from the child's family or community; (e) the safety of the community and other children in the centre, in the case of a child in need of secure care; and (f) any other relevant factors. (4) The provincial head of social development must, as a general rule, select a centre offering the programme ordered by the court which is located as close as possible to the child's family or community.

[19] Section 158 of the Children’s Act provides:

Placement of child in child and youth care centre

(1) A children's court may issue an order placing a child in the care of a child and youth care centre only if another option is not appropriate.

(2) If a children's court decides that a child should be placed in the care of a child and youth care centre, the court must-

(a) determine the residential care programme best suited for the child; and

(b) order that the child be placed in a child and youth care centre offering that particular residential care programme.

(3) The provincial head of social development in the relevant province must place the child in a child and youth care centre offering the residential care programme which the court has determined for the child, taking into account-

(a) the developmental, therapeutic, educational and other needs of the child;

(b) the permanency plan for the child which was considered by the court, and any instructions issued by the court with regard to the implementation of the permanency plan;

(c) any other instructions of the court;

(d) the distance of the centre from the child's family or community;

(e) the safety of the community and other children in the centre, in the case of a child in need of secure care; and

(f) any other relevant factors.

(4) The provincial head of social development must, as a general rule, select a centre offering the programme ordered by the court which is located as close as possible to the child's family or community.

[20] Section 195 of the Children’s Act provides: The MEC for social development must, from money appropriated by the relevant provincial legislature, establish and operate child and youth care centres for that province.

[20] Section 195 of the Children’s Act provides:

The MEC for social development must, from money appropriated by the relevant provincial legislature, establish and operate child and youth care centres for that province.

[21] With effect from 22 May 2015, in terms of GN R317 of 17 April 2015. The statement in para 5 of the judgment of the court a quo, dated 2 March 2016, that ‘[s]ection 18 of the Superior Courts Act came into effect after the old Rule 49(11) was repealed’ is incorrect. Curiously, sub-rule 49(12), which was inextricably linked with sub-rule (11), was not simultaneously

deleted, and remains part of the Uniform Rules without any discernible purpose.

[22] Incubeta Holdings supra, at para 10.

[23] Ibid, at para 1.

[24] Ibid, at para 9.

[25] Ibid, at para 21-22.

[26] Ibid, at para 16.

[27] In the current matter, for example, it was contended that the fact that the orders went to the protection of children’s rights made the circumstances exceptional within the meaning of s 18(1) of the Superior Courts Act.

[29] As described in judgments such as Knox D'Arcy Ltd and Others v Jamieson and Others [1996] ZASCA 58; 1996 (4) SA 348 (A), [1996] 3 All SA 669 supra, loc. cit. and Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another 2015 (5) SA 245 (CC) supra, loc. cit.

[30] South Cape Corporation supra, at 545B-C.

[31] At para 26.

[32] There are, of course, other grounds on which leave to appeal may be granted; see s 17(1)(a)(ii) of the Superior Courts Act.>

[33] Affidavit by Robert MacDonald, Acting Head of Department of the Western Cape Department of Social Development, jurat 4 July 2014.

[34] See the definition of ‘secure care’, quoted in note 7, above.

[35] Paragraph 13 of the notice of motion in the principal case read follows: [An order a]ccordingly, declaring the decisions to close and/or the intended closures of Die Bult Centre, Eureka Centre, Ottery Centre, and/or Wellington Centre, and child and youth care centres, to have been or to be unlawful and unconstitutional, in that they are inter

alia. 13.1 Not in the best interests of children in need of care and protection in the Western Cape Province; 13.2 Not in the best interest of children in the Western Cape Province who are being, alternatively were accommodated in such centres. 13.3 Contrary to the Act, in particular sections 158, 192, 193, 195 and 196.

[35] Paragraph 13 of the notice of motion in the principal case read follows:

[An order a]ccordingly, declaring the decisions to close and/or the intended closures of Die Bult Centre, Eureka Centre, Ottery Centre, and/or Wellington Centre, and child and youth care centres, to have been or to be unlawful and unconstitutional, in that they are inter

alia.

13.1 Not in the best interests of children in need of care and protection in the Western Cape Province;

13.2 Not in the best interest of children in the Western Cape Province who are being, alternatively were accommodated in such centres.

13.3 Contrary to the Act, in particular sections 158, 192, 193, 195 and 196.

[36] Paragraph 13 of the notice of motion in the principal case has been quoted in note 35, above.