Centre for Child Law and 11 Others v Minister of Justice and 9 Others – Unreported

Summary of the facts

The matter came to court because of the plight of 11 girls who were being held in the prison cells at Bethal prison. They were there due to the fact that the principal of the school had charged them with malicious damage to property. Statements taken by the attorney revealed some disturbing stories about what was going on at the school such as girls being “sat on” by other girls, assaults and various other prohibited behaviour management practices.  The statements of the girls were placed before the High Court. The Centre for Child Law, concerned about these practices and the safety of all the children in the school, sought a wide ranging order from the High Court that would put in place an emergency process to manage a longer term transformation process at the school.

Legal Issues

• Dept of Education’s responsibility to protect children placed legally in their care
• breach of a number of constitutional rights
• unlawful detention of children in prison

15 April 2005: The first order

The urgent application was heard on a Friday night in judge’s chambers. The judge granted a detailed order that included the following:

• The 11 girls must be returned immediately to the school
• Advocate Ann Skelton be appointed as curator ad litem for the children to look after their legal interests
• That the principal refrain from having children arrested and charged with minor offences
• That the MEC for Education (Mpumulanga), in consultation with the MEC for Social Development, should make immediate arrangements for George Hofmeyr School to be subjected to a developmental quality assurance process (DQA), in accordance with recognized policy and standards for developmental quality assurance for residential care and treatment
• That the team that carries out the DQA must be multi-disciplinary, comprising experts from both the government and non-government sector with expertise in child and youth care and children’s rights, and that the team must report back to court by 10 May 2005
• In the interim, that the MEC for Education must put in place the following support structures to prevent further incidents of suicide or self harm:
  • An advisor (expert in child and youth care) to support the management team at the schoo
  • A process to assess each child at the school according to developmental assessment practice in order to reinstate a therapeutic milieu and to stabilize the emotional well-being of the children
• The principal and certain staff members were also ordered not to assault children by “sitting on them” or any other way
• That the children be allowed to visit a toilet at night and have reasonable contact with their parents.

The girls were taken back to school on Saturday 16 April. The Department of Education swung into action immediately. They appointed Lesley du Toit of CYCAD as the advisor, and set up a multi-disciplinary team made up of government and NGO persons to carry out the DQA, which was done on 4,5 and 6 May 2005.

10 May 2005: The Second Order

The reports by the curator ad litem and by the DQA team were placed before the High Court on 10 May 2005.  The Court was obviously impressed by what had been done, as the judge took the unusual step of starting the order with a preamble which talks about the UN Convention.

The second order basically took the DQA report and made the recommendations an order of the High Court. The order can divided into three parts: The first part is comprised of “immediate” actions that the court ordered must happen as of 10 May 2005, the second part includes a number of medium to long term actions that must be carried out relating to the transformation of the school, and the third part deals with monitoring of the whole process.

Current Status/planned action

The Court has taken an innovative approach in “overseeing” that the orders are actually carried out. They have asked for certain reports back to court in order to track the compliance with the orders. A review must be done by the DQA Team, and a report lodged with the court by 30 November 2005, by which time all recommendations should have been implemented. The respondents affected by the orders are ordered to report to the Court, to the Centre for Child Law and to their attorneys on a quarterly basis as to what steps have been taken to implement these orders.

First Court Order
Second Court Order