Centre for Child Law and Another v Minister of Home Affairs and Others 2005 (6) SA 50 (T)

Summary of the facts:

On 3 March 2004 the Centre for Child Law brought an urgent application on behalf of a number of unaccompanied foreign children who were detained at Lindela Repatriation Centre. At the time of that application the detained children were being held together with adults also detained at Lindela. They were facing imminent and unlawful deportation. The Court granted an interdict preventing the Minister of Home Affairs from proceeding with the deportation of the children and also appointed Advocate Isabelle Ellis as curator ad litem for the children. The curator's powers and duties included, amongst others, to investigate the circumstances of the children in detention, to make recommendations to the Court regarding their future treatment and to institute legal proceedings in enforcement of their rights. The children were moved from Lindela to Dyambu Youth Centre on 2 April 2004 pending a children's court enquiry.

During May 2004, the Krugersdorp Commissioner of Child Welfare refused to conduct Children's Court inquiries in respect of these children, because in his view foreign children fell outside of the ambit of the Child Care Act. On 21 May 2004 the High Court set aside the Commissioner's refusal to conduct children's court proceedings, and ordered him to conduct such inquiries.

This having been ordered, the next step fell to the Department of Social Development, as it is the task of social workers to open the inquiries. This did not happen, despite repeated attempts by the applicants to get action through telephone calls, meetings and correspondence. The children had been in detention since February, and by August were becoming very frustrated with the process. The children believed that they were being "punished" for no reason and they objected to the fact that they are currently being held at a facility which houses children awaiting trial.

In a precedent-setting judgment, Judge Annemarie de Vos castigated the "apathy" of government officials who had failed to act in accordance with South Africa's Constitution, statutory law and their own stated policy and were also in breach of international law.

Legal Issues

The judgment was delivered in response to an urgent application brought on Wednesday 8 September 2004, by the Centre for Child Law and Isabelle Ellis, the curator ad litem for 13 unaccompanied foreign children. Lawyers for Human Rights-Pretoria Law Clinic acted as the attorneys and counsel for the applicants. The importance of the judgement is that:

It removes any doubt that may have existed about the fact thatunaccompanied foreign children should be dealt with under the provisions ofthe Child Care Act.

Judge de Vos indicated that in her view unaccompanied foreign children should have legal representatives assigned to them by the state in terms of section 28 (1)(h) of the Constitution. She ordered that the Krugersdorp Commissioner for Child Welfare must assign legal representatives for the children if it appears that substantial injustice would otherwise result.

The judge found that there is a positive duty on government departments to liase with one another to formulate and implement practical arrangements regarding unaccompanied foreign children found in South Africa.

In her judgment, Judge Annemarie de Vos noted that South Africa has recently celebrated the 10th anniversary of the first democratic elections and that we as South Africans are justifiably proud of our democracy and the principles enshrined in our Constitution. She also noted that we have an icon in Nelson Mandela whose love for children is internationally known. However, the lofty ideals set out in our constitution and government policy become "hypocritical nonsense" if they are not translated into action by the people who have been appointed and paid by the government to make them a reality. She noted with deep concern that the children had remained in detention since February, and she said that government's failure to act in the best interests of the children was shameful.

The order that was handed down on Wednesday 8 September 2004 directed the Department of Social Development to bring thechildren, presently detained in Dyambu Youth Centre, before the Krugersdorp Children's Court in order for inquiries to be opened for them in terms ofthe provisions of section 12(2)(c) of the Child Care Act 74 of 1983 within15 days. In addition, the order interdicted the departments concerned frombringing or admitting any further unaccompanied foreign children to Lindela, and directed that in future such children should be dealt with in terms of the Child Care Act. Regarding the children who have recently been brought to Lindela the judge said their detention is unlawful and invalid and must cease immediately.

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Headnote : Kopnota