South Africa Case Law

Makgobo v S (A121/2023)

Makgobo v S (A121/2023) [2023] ZAWCHC 238 (8 September 2023)

Court

Western Cape High Court, Cape Town

Case number

A121/2023

Judges

J I Cloete, N Ralarala

The magistrate committed material errors of law and fact by refusing to consider a suspended sentence, failing to obtain a pre-sentence report, and unlawfully ordering the summary removal of the appellant's children. The sentencing proceedings were vitiated by a grave miscarriage of justice, particularly given the appellant's status as sole caregiver and the absence of evidence supporting aggravating factors such as the alleged street value of the drugs. The best interests of the children, as enshrined in section 28(2) of the Constitution and articulated in S v M, were disregarded. The court…

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• Sentencing Principles
• Primary Caregiver
• Children In Need Of Care
• Drugs And Drug Trafficking Act
• Pre Sentence Report
• Suspension Of Sentence

H.C.J v N.J and Another (977/2020)

H.C.J v N.J and Another (977/2020) [2023] ZAFSHC 182 (18 April 2023)

Court

Free State High Court, Bloemfontein

Case number

977/2020

Judge

Gusha, AJ

Court restored primary residence of two minor children to their mother, finding no credible evidence of abuse or neglect and ordering structured contact for the father.

• Primary Residence
• Best Interests Of Child
• Parental Responsibilities And Rights
• Children In Need Of Care
• Child Abuse Allegations
• Maintenance Order

NM v Presiding Officer of the Children’s Court, District of Krugersdorp and Others (A3075/2011)

NM v Presiding Officer of the Children’s Court, District of Krugersdorp and Others (A3075/2011) [2013] ZAGPJHC 64; 2013 (4) SA 379 (GSJ); [2013] 3 All SA 471 (GSJ) (12 April 2013)

Court

South Gauteng High Court, Johannesburg

Case number

A3075/2011

Judges

Carelse, Mathopo

The court held that section 150(1)(a) of the Children’s Act must be interpreted purposively and in line with the Constitution, ensuring the best interests of the child. The distinction between caregivers who owe a common law duty of support and those who do not is irrational and discriminatory. The inquiry into whether a child is in need of care and protection must focus on the child’s own financial means, not the caregiver’s. If the child is orphaned and without visible means of support, and the caregiver cannot financially provide for the child, the child qualifies for foster care and the c…

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• Children In Need Of Care
• Foster Care Grant
• Interpretation Of Children Act
• Visible Means Of Support
• Best Interests Of Child

SS v Presiding Officer of the Children’s Court: District of Krugersdorp and Others (14/1/4-206/10, A3056/11)

SS v Presiding Officer of the Children’s Court: District of Krugersdorp and Others (14/1/4-206/10, A3056/11) [2012] ZAGPJHC 149; 2012 (6) SA 45 (GSJ) (29 August 2012)

Court

South Gauteng High Court, Johannesburg

Case number

14/1/4-206/10, A3056/11

Judges

Saldulker, MVR Potgieter

The court held that the Children’s Court erred in its interpretation of s150(1)(a) of the Children’s Act by focusing on the means of the caregiver rather than the child. The correct approach is a two-stage inquiry: first, whether the child is orphaned or abandoned; second, whether the child is without any visible means of support, which refers to the child’s own financial resources and not those of the caregiver. The Lamanis, as the child’s aunt and uncle, have no legal duty of support and thus qualify as foster parents. The minor child, SS, is an orphan without visible means of support and i…

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• Foster Care
• Children In Need Of Care
• Interpretation Of Statutes
• Social Assistance
• Best Interests Of Child