THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 156/2015
In the matter between:

CENTRE FOR CHILD LAW
APPELLANT

and

THE GOVERNING BODY OF HOËRSKOOL FOCHVILLE
FIRST RESPONDENT

HOËRSKOOL FOCHVILLE
SECOND RESPONDENT

Neutral citation:
Centre for Child Law v The Governing Body of Hoërskool Fochville
(156/2015) [2015] ZASCA 155 (8 October 2015)

Bench:
Ponnan, Theron, Majiedt and Mbha JJA and Gorven AJA

Heard:

28 September 2015

Delivered:

8 October 2015

Summary: Appeal – mootness – discrete point of interpretation – production of
documents – Uniform rule 30A applicable when rule 35(12) not complied with – court
must try to strike a proper balance in the exercise of its general discretion – interests of
children must be accorded adequate weight.

_____________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Gauteng Local Division of the High Court, Johannesburg (Sutherland
J, sitting as court of first instance): reported sub nom Governing Body, Hoërskool
Fochville & others v Centre for Child Law 2014 (6) SA 561 (GJ).

The appeal succeeds and the order of the court below is set aside and replaced with:
„The application is dismissed‟.
______________________________________________________________________

JUDGMENT
______________________________________________________________________

Ponnan JA (Theron, Majiedt and Mbha JJA and Gorven AJA concurring):

[1] On 1 December 2011 the respondents in the present appeal, the Governing
Body of Hoërskool Fochville, as the first applicant, and Hoërskool Fochville, as the
second (collectively referred to as the School) approached the Gauteng Local Division
of the High Court, Johannesburg for relief in two parts. Under Part A, an urgent interim
order was sought interdicting, what for convenience may be described as the relevant
authorities,1 from admitting or directing the principal of the School to admit any
additional learners (the additional learners) for the 2012 academic year. Under Part B,
an order was sought, inter alia, reviewing and setting aside the admission, by or at the
instance of the relevant authorities, of any additional learners in circumstances where
such admission would result in the total number of learners admitted exceeding the

1 Cited as the first to fourth respondents respectively, they were: the Member of the Executive Council:
Education, Gauteng Province; the Head of Department: Gauteng Department of Education; Mr Peter
Skosana, the District Director of the Gauteng Department of Education; and Ms Judith N Dube, the Chief
Education Specialist: Institutional Development of the Gauteng Department of Education.

capacity of the School as determined in its admission policy. Although no relief was
sought against them, each of the parents or guardians of the additional learners were
cited as the further respondents „by virtue of an interest that they or their minor children
whom they represent, might have in the outcome of the application‟.

[2] In support of that application (the main application) it was stated on behalf of the
School that the relevant authorities had directed the principal to admit the additional
learners to the School for the 2012 academic year, notwithstanding the fact that it had
already reached its capacity for that year. As a result, so it was asserted, the admission
of the additional learners would result in severe overcrowding and materially prejudice
all of the learners at the School, including the additional learners. The relevant
authorities contended, notwithstanding the School‟s protest to the contrary, that the
School had the capacity to accommodate the additional learners.

[3] The urgent application failed and in January 2012 the additional learners were
duly enrolled as the first Grade 8 English language medium class at the School, which
since its inception had been an Afrikaans medium school. On 14 December 2012 the
relevant authorities launched a counter-application seeking to change the School‟s
language policy from Afrikaans medium to dual medium. On 19 December 2012 the
present appellant, the Centre for Chid Law (CCL),2 applied for leave to intervene as the
third applicant in the main application (the intervention application). In support of the
intervention application, Ms Carina Du Toit, an attorney at the CCL, stated:
„26.
In order to establish the interests of the children in this matter we drove to Kokosi
township on 3 November 2012 to meet with the children.
27.
The initial introduction of our team to the children took place in the presence of some of
their parents, who supported the idea of the children being separately represented in the matter.
The children were enthusiastic about the idea of being given a chance to have their own views
and wishes heard by the court. The children‟s parents were not present during the interviews.
28.
We divided the children into groups of approximately six to eight learners. Each child
was asked to complete a questionnaire. They were permitted to complete the questionnaire

2 The main objective of the CCL is to establish and promote child law and to uphold the rights of children
in South Africa in terms of clause 3 of its Constitution.

without affixing their names to it. The questionnaire listed specific questions but the children
could also write additional comments.‟

[4] On 25 January 2013 the School gave notice of its intention to oppose the CCL‟s
intervention application. But, before filing an answering affidavit, on 1 February 2013 it
first served a notice in terms of Uniform rule 35(12) requiring the CCL to produce for
inspection, inter alia, „all questionnaires completed by the learners‟ as referred to in
paragraph 28 of Ms Du Toit‟s affidavit. On 15 February 2013 the CCL replied to the
School‟s rule 35(12) notice that it refused to:
„produce or make available for inspection the questionnaires completed by the learners on the
basis that these documents are privileged as they amount to statements and/or communication
between Attorney and Client and between Attorney and Advocate. In addition an undertaking
was made to the learners that these documents will remain confidential.‟

[5] On 25 April 2013 the School applied to the court a quo for an order:
„1.
Compelling the [CCL] to comply with the applicants‟ rule 35(12) notice dated 1 February
2013, within five days of this order;
2.
Ordering the [CCL] to deliver true copies of the questionnaires to which it refers in
paragraph 28 of its founding affidavit in its application to intervene, to the applicants‟ attorney
within five days of this order;
3.
Ordering the [CCL] to pay the applicants‟ costs of this application‟.

[6] In support of that application (the application to compel) Mr Erasmus, the
School‟s attorney, stated:
„4.
[T]he Centre for Child Law – seeks leave to intervene as a third party in its own right, to
represent the interests of the learners who are already before the court as the fifth to fifty third
respondents. The [CCL] also purports to represent the interests of an unspecific class of other
minors who are not already parties to this litigation.
5.
In support of its application to intervene, the [CCL] has delivered a 55 page affidavit
(excluding annexures), 21 pages of which summarise alleged statements of the learners
attacking the School, for discriminating against them in various ways, including racially. The
[CCL] expressly alleges that these summaries are based on questionnaires completed by the

learners, but refuses to produce them, despite delivery of a rule 35(12) notice. The [CCL] claims
privilege.
6.
The purpose of the application is to compel the [CCL] to produce the questionnaires
completed by learners referred to in paragraph 28 in the application to intervene.
7.
The applicants are not in a position to answer fairly and meaningfully to the [CCL]‟s
affidavit, without production of the questionnaires which are at the heart of the [CCL]‟s
application to intervene.
8.
This situation creates a difficulty for the applicants, since the applicants dispute not only
the [CCL]‟s right to intervene, but also that it has the legal personality required to be a party to
litigation (as opposed to an amicus curiae). This defence will be raised in answering affidavit,
which cannot, however, be settled before these questionnaires are produced. The applicants‟
citation of the [CCL], as the respondent in this interlocutory application, is not intended to and
should not be construed as a waiver of the applicant‟s right to contest the [CCL]‟s legal
personality and locus standi in the intervention applications.‟

[7] In opposing the application to compel, Ms Du Toit, on behalf of the CCL, stated:
„10.
The CCL acts on behalf of the children as a group instead of citing each individual child
for the following reasons:
10.1
There are 37 children actively involved in the litigation who wanted to express their views
and participate in the litigation. This means that there are nuanced and varied views from each
of the children. If CCL or the Legal Resources Centre (“LRC”) simply represented the children
as their attorneys, each child would have to be cited in their individual capacity and depose to
his or her own affidavit.
10.2
By allowing them to fill-in the questionnaires individually and consulting with them in
small groups we could collate the children‟s views and experiences in one affidavit. This would
allow the court to get a full range of views without having to read through thirty seven affidavits.
10.3
Most fundamentally, this approach is more protective of the children. The children
described victimisation within the school, especially by other children, and it was our
professional opinion that if the children were cited individually and deposed to their own
affidavits they would be placed in a vulnerable position. We therefore decided to act on behalf
of, and in the interests of, the children as CCL in order to put their views before the court and to
protect their best interests.
. . .

13.1
At the outset I should point out that the affidavit is not based only on the information
contained in the questionnaires. The questionnaires were merely one tool to facilitate the
process of consultation. An employee of either the LRC or the CCL sat with each group of
children in order to conduct the consultation. In addition, I personally consulted with each group
of children on more than one occasion and asked questions not contained in the questionnaire. I
also obtained further explanations of answers provided to the questionnaire. During these
discussions the children were encouraged to express themselves fully and freely on the express
understanding that the questionnaires themselves would not be provided to the applicants and
that certain information disclosed by the children would be confidential, if they so requested.
13.2
In this regard, the questionnaires are no different in substance to correspondence
directed to adult clients, which may be one method of taking instructions from adult clients, in
addition to consultations in person.
. . .
13.4
Furthermore, the children do not seek any relief in respect of the incidents of racism or
bullying they have experienced. The applicants are therefore not called on to answer each and
every allegation and do not need to know the exact details of incidents of abuse experienced by
the children. In addition, by excluding the limited information that would identify individual
victims or perpetrators in respect of these incidents of racism and bullying, the CCL has avoided
the threat of harm to individual reputation and relationships that may require specific, detailed
responses to the allegations.
. . .
20.
It is denied that the applicants are not in a position to answer fairly and meaningfully to
the CCL‟s founding affidavit. The applicants are not called upon to answer each and every
allegation made by the children, nor is it necessary for a determination of the issues in the main
matter. In any event, all of the information obtained through the questionnaires, save for
information that may lead to the identification of the children or is confidential by agreement with
the children, is enclosed in annexure “CDT 2” of the CCL‟s affidavit. The applicants will not be
placed in a better position to answer the allegations should they be given access to the
questionnaires. This is also because the purpose of the consultations with the children was not
to discuss specific incidents but to record the children‟s experiences in an perspectives of
Hoërskool Fochville. We did not explore in any detail the facts surrounding specific incidents
and they are therefore not contained in the questionnaires.
. . .

25.
The applicants quite simply fail to understand the legal representation of children
separate from their parents and as a group. The CCL acts on behalf of the minor children
involved and in the public interest. We do so for the reasons advanced above and in our
founding affidavit in the application to intervene.
. . .
27.
CCL acts as a vehicle for the children to participate and be legally represented in the
matter. The children are represented by the LRC as their attorneys through the CCL who is
assisting them in bringing this litigation and act on their behalf‟.

[8] The application to compel came before Sutherland J, who, on 19 November
2013, ordered the CCL to:
(a)
comply with the school‟s rule 35(12) notice by delivering up for inspection and
copying the original questionnaires; and
(b)
pay the costs of the proceedings including those of two counsel.
On 24 July 2014, Sutherland J granted leave to the CCL to appeal to this court against
his judgment. By then, however, a settlement agreement had been concluded between
the parties to the litigation in the main application. In terms of the settlement agreement
dated 23 July 2014 and to which the CCL was a party, the relevant authorities had
undertaken by the beginning of the 2015 academic year to construct a new English
medium secondary school in Fochville. It was also agreed that, save for one learner, all
of the additional learners will be allowed to complete their education at the School.

[9] In granting leave to the CCL to appeal to this court the learned judge recognised
that in the light of the settlement agreement, „the rule 35(12) application by the School
against CLL . . .  has become moot as it cannot be enforced and is now utterly
irrelevant‟. Accordingly, so stated the learned judge, „the provisions of section 16(2)(a)
of the Superior Courts Act 10 of 2013 (the successor provisions to section 21A of the
Supreme Court Act 59 of 1959) applies‟. Sutherland J was nonetheless persuaded that
there was a „live issue‟ that went beyond the strictures of this case that justified the
grant of leave to appeal.

[10] In the light of the competing contentions of the parties we were required to
consider at the hearing of the matter whether the appeal should be entertained at all. To
that end counsel were requested to present argument as to whether it was not
appropriate to deal with the matter in terms of s 16(2)(a)(i) of the Superior Courts Act 10
of 2013 (the Act), according to which this court may dismiss an appeal where „the issues
are of such a nature that the decision sought will have no practical effect or result‟. It is
trite that courts should and ought not to decide issues purely for academic interest
(Radio Pretoria v Chairman, Independent Communications Authority of South Africa &
another 2005 (1) SA 47 (SCA)).  Of its predecessor, s 21A of the Supreme Court Act 59
of 1959,3 this court stated in Coin Security Group (Pty) Ltd v SA National Union for
Security Officers & others 2001 (2) SA 872 (SCA) para 7:
„The purpose and effect of s 21A has been explained in the judgment of Olivier JA in the case of
Premier, Provinsie Mpumalanga, en 'n Ander v Groblersdalse Stadsraad 1998 (2) SA 1136
(SCA). As is there stated the section is a reformulation of principles previously adopted in our
Courts in relation to appeals involving what were called abstract, academic or hypothetical
questions. The principle is one of long standing.‟

[11] This court has a discretion in that regard and there are a number of cases where,
notwithstanding the mootness of the issue as between the parties to the litigation, it has
dealt with the merits of an appeal (see, inter alia, Natal Rugby Union v Gould 1999 (1)
SA 432 (SCA) ([1998] 4 All SA 258); The Merak S: Sea Melody Enterprises SA v
Bulktrans
(Europe)
Corporation
2002
(4)
SA
(SCA);
Land
en
Landbouontwikkelingsbank van Suid-Afrika v Conradie 2005 (4) SA 506 (SCA) ([2005] 4
All SA 509); and Executive Officer, Financial Services Board v Dynamic Wealth Ltd
2012 (1) SA 453 (SCA)). With those cases must be contrasted a number where the
court has refused to enter into the merits of the appeal.4 The broad distinction between

3 Section 21A(1) of the Supreme Court Act 59 of 1959 provided:
„When at the hearing of any civil appeal to the Appellate Division or any Provincial or Local Division of the
Supreme Court the issues are of such a nature that the judgment or order sought will have no practical
effect or result, the appeal may be dismissed on this ground alone.‟
4 See Radio Pretoria v Chairman, Independent Communications Authority of South Africa above; Rand
Water Board v Rotek Industries (Pty) Ltd 2003 (4) SA 58 (SCA); Minister of Trade and Industry v Klein
NO [2009] 4 All SA 328 (SCA); Clear Enterprises (Pty) Ltd v CSARS [2011] ZASCA 164 (SCA); The
Kenmont School & another v DM & others [2013] ZASCA 79 (SCA); and Ethekwini Municipality v South
African Municipal Workers Union & others [2013] ZASCA 135 (SCA); Legal Aid South Africa v Magidwana

the two classes is that in the former a discrete legal issue of public importance arose
that would affect matters in the future and on which the adjudication of this court was
required, whilst in the latter no such issue arose (see Qoboshiyane NO & others v
Avusa Publishing Eastern Cape (Pty) Ltd & others 2013 (3) SA 315 (SCA) para 5).

[12] The facts in Gould were: An election for the office of president of the appellant
rugby union was held at its annual general meeting. A review application to the High
Court alleging that the election was invalidated by procedural irregularities succeeded.
But before the appeal to this court against that decision was heard the rugby union
convened a special general meeting to hold fresh presidential elections at which a
president was duly elected. In explaining why it was nonetheless appropriate for the
appeal to be entertained by this court, Howie JA stated (at 444I–445B):
„Had there been no appeal the judgment of the court below would in all probability have
continued to influence the procedure adopted in respect of office bearer elections at future union
meetings. There was, of course, nothing irregular or unfair in the procedures adopted at the re-
election meeting, viewed purely in isolation, without regard to the constitution. But the union
does have this constitution. It is the chosen instrument by which the union‟s affairs are to be
regulated and the union, its office bearers and council members are entitled to have it
interpreted in order to guide them for the future. In the circumstances I consider that
determination of the appeal will, quite apart from the issue of costs in the court below, have a
“practical effect or result” within the meaning of s 21A of the Supreme Court Act.‟

[13] Both The Merak S: Sea Melody Enterprises SA v Bulktrans (Europe) Corporation
and Land en Landbouontwikkelingsbank van Suid-Afrika v Conradie were concerned
with questions of law. In the former, Farlam JA took the view that in the light of the
importance of the questions of law which arise in the matter and the frequency with
which they arise, it was an appropriate matter for the exercise of this court‟s discretion
to allow the appeal to proceed. In the latter, Mpati DP observed „[w]here, for example,
questions of law, which are likely to arise frequently, are at issue a court of appeal may
hear the merits of the appeal and pronounce upon it‟. Executive Officer, Financial

& others [2014] 4 All SA 570 (SCA); and Deutsches Altersheim Zu Pretoria v Dohmen & others [2015]
ZASCA 3 (SCA).

Services Board v Dynamic Wealth concerned „the proper construction of an important
provision in the regulatory armoury of the registrar, the test to be applied in considering
an application for curatorship under s 5(1) of the [Financial Institutions (Protection of
Funds) Act 28 of 2001] and a consideration of the evidential status of an inspection
report‟. Wallis JA stated that these „are all important issues that will impact upon the
future conduct of the registrar‟ and thus could not agree that the appeal did not have
any practical effect or result.

[14] The High Court considered that it was engaged in the proper interpretation of rule
35(12). On that score, it has spoken and absent an appeal its judgment will in all
probability continue to influence how litigants approach such an enquiry. If the High
Court erred in its approach, as it appears that it indeed has, then future litigants are
entitled to the benefit of this court‟s view on the issue. I thus consider that the
determination of the appeal will have a „practical effect or result‟ within the meaning of
that expression, inasmuch as a discrete legal issue of public importance arises that
would affect matters in the future and on which the adjudication of this court is required.

[15] Uniform rule 35(12) states:
„Any party to any proceeding may at any time before the hearing thereof deliver a notice as near
as may be in accordance with Form 15 in the First Schedule to any other party in whose
pleadings or affidavits reference is made to any document or tape recording to produce such
document or tape recording for his inspection and to permit him to make a copy or transcription
thereof. Any party failing to comply with such notice shall not, save with the leave of the court,
use such document or tape recording in such proceeding provided that any other party may use
such document or tape recording.‟
As Botha J pointed out in Moulded Components and Rotomoulding South Africa (Pty)
Ltd v Coucourakis 1979 (2) SA 457 (W) at 459G, the self-contained sanction in rule
35(12) is of a „negative nature, being to the effect that a party failing to comply with the
notice shall not, save with the leave of the court, use the document in question,
provided that any other party may use such document‟. That sanction is one that comes
into effect automatically upon non-compliance with the provisions of the rule. But, a

party who gives notice under rule 35(12) may not be content with just the negative
sanction provided by the rule. In that event it is to rule 30A that such party must turn.

[16] Uniform rule 30A reads:
„(1)
Where a party fails to comply with these rules or with a request made or notice given
pursuant thereto, any other party may notify the defaulting party that he or she intends, after the
lapse of 10 days, to apply for an order that such rule, notice or request be complied with or that
the claim or defence be struck out.
(2)
Failing compliance within 10 days, application may on notice be made to the court and
the court may make such order thereon as to it seems meet.‟
Under rule 30A a party making a request, or giving a notice, to which there is no
response by the other party, may through a further notice to the other party warn that
after the lapse of ten days application will be made for an order that the notice or
request be complied with, or that the claim or defence be struck out, as the case may
be. Failing compliance within the ten days mentioned, application may then be made to
court and the court may make an appropriate order. That, as Botha J described it in
Coucourakis (at 459H), is a „positive form of relief‟.

[17] In general terms, the rules exist to regulate the practice and procedure of the
courts. Their object is to secure the „inexpensive and expeditious completion of litigation
before the courts and they are not an end in and of themselves.5 Ordinarily, strong
grounds would have to be advanced to persuade a court to act outside the powers
provided for specifically in the rules. Here, having given notice in terms of rule 35(12)
that has not been complied with, it was for the School to give notice in terms of rule 30A
that it intended, after the lapse of ten days, applying for an order that its rule 35(12)
notice be complied with. That, the School did not do. Nor did it apply to court in terms of
rule 30A to compel production of the documents sought. That, in and of itself, may have
been fatal to the application (see Universal City Studios v Movie Time 1983 (4) SA 736

5 See Hudson v Hudson 1927 AD 259 at 267; Federated Trust Ltd v Botha 1978 (3) SA 645 (A) at 654C-
D. See also D E van Loggerenberg & P B J Farlam Erasmus: Superior Court Practice (2014) (Revision
Service 45) at B1-4 – B1-6.

(D)).6 In Universal City Studios, Booysen J was urged, despite the fact that the
procedure laid down in rule 30(5) (the predecessor to rule 30A) had not been followed,
to nevertheless order compliance with the rule 35(12) notice. He declined, stating that „a
party who deliberately chooses not to claim relief of a particular nature, should in
general, even if it were competent, not be granted such relief under the general prayer
of alternative relief‟. Whether Booysen J was correct in his approach to the matter
hardly need detain us. For, the real complaint in this case is that however the
application was presented, the learned judge in the court a quo failed to appreciate that
he was, in truth, considering an application in terms of rule 30A. In compelling
production of the questionnaires, Sutherland J „sum[med] up the law‟ thus:
„25.1. There is clear authority that confidentiality does not trump the rule.
25.2. There is some authority for the proposition that rule 35(12) must be literally interpreted,
and irrelevant and privileged documents must be disclosed. I am in firm disagreement with such
a view.
25.3. There is some authority, which is nevertheless obiter, to support the idea that an
irrelevant or privileged document, if referred to in a pleading or affidavit, cannot be subjected to
compulsory disclosure in terms of rule 35(12). I am in firm agreement with this view.
25.4. Therefore, I hold that, upon a proper interpretation of rule 35(12), a party called upon to
comply with rule 35(12) is excused from so doing, if that party shows that the document sought
is irrelevant to the issues in the matter, or is privileged, but cannot refuse on the grounds of
confidentiality.‟

[18] Universal City Studios held (at 748A) that:
„[this] being an application, I would say that the onus is to be discharged on the usual basis, ie
that the applicant bears the overall onus of satisfying the Court that the respondent is obliged to
produce the document . . . . Where the respondent files an opposing affidavit . . . and either
denies relevance or avers that he is on ground of privilege not obliged to produce a document . .
. the applicant would, in order to succeed, have to satisfy the Court on a balance of probabilities
that the document is indeed relevant or not privileged.‟

6 In Universal City Studios v Movie Time 1983 (4) SA 736 (D), Booysen J dismissed an application to
compel compliance with a notice in terms of rule 35(12) on basis that the procedure laid down in rule
35(5) (the predecessor to the current rule 30A) had not been followed.

In Gorfinkel v Gross, Hendler & Frank 1987 (3) SA 766 (C), Friedman J disagreed with
this dictum. He took the view that the rule should be interpreted as follows:
„[P]rima facie there is an obligation on a party who refers to a document . . . to produce it. That
obligation is, however, subject to certain limitations, for example, if the document is not in his
possession and he cannot produce it, the Court will not compel him to do so. . . . Similarly, a
privileged document will not be subject to production. A document which is irrelevant will also
not be subject to production. As it would not necessarily be within the knowledge of the person
serving the notice whether the document falls within the limitations I have mentioned, the onus
would be on the recipient of the notice to set up facts relieving him of the obligation to produce
the document‟.
Friedman J‟s approach found favour with Thring J in Unilever plc v Polagric (Pty) Ltd
2001 (2) SA 329 (C). For my part, I entertain serious reservations as to whether an
application such as this should be approached on the basis of an onus. Approaching the
matter on the basis of an onus may well be to misconceive the nature of the enquiry. I
thus deem it unnecessary to attempt to resolve the disharmony on the point. That
notwithstanding, it is important to point out that the term onus is not to be confused with
the burden to adduce evidence (for example that a document is privileged or irrelevant
or does not exist).7 In my view, the court has a general discretion in terms of which it is
required to try to strike a balance between the conflicting interests of the parties to the
case. Implicit in that is that it should not fetter its own discretion in any manner and
particularly not by adopting a predisposition either in favour of or against granting
production. And, in the exercise of that discretion, it is obvious, I think, that a court will
not make an order against a party to produce a document that cannot be produced or is
privileged or irrelevant.

7 In Coch v Lichtenstein 1910 AD 178, Innes JA stated that „the mere production of evidence which
makes the existence of . . . facts probable does not in itself shift the onus though it may go a long way
towards satisfying it‟; and in Pillay v Krishna 1946 AD 946 at 952 Davis AJA held:
„in my opinion, the only correct use of the word onus is that which I believe to be its true and original
sense, namely the duty which is cast on a particular litigant, in order to be successful, of finally satisfying
the court, that he is entitled to succeed on his claim, or defence, as the case may be, and not in the sense
merely of his duty to adduce evidence to combat a prima facie case made by his opponent.‟ See also
South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at
548.

[19] In striking the appropriate balance in a case of this nature adequate weight must
be accorded to the interests of the children. In that regard, a useful starting point is an
appreciation that the right of children to representation separate from their parents,
flows from their right to participate in all matters that affect them. That is a right which is
widely recognised in international law and forms part of South African law. Article 12 of
the United Nations Convention on the Rights of the Child, 1989 (UNCRC)8 entrenches
the child‟s right to participate. It provides:
„1.
States Parties shall assure to the child who is capable of forming his or her own views
the right to express those views freely in all matters affecting the child, the views of the child
being given due weight in accordance with the age and maturity of the child.
2.
For this purpose, the child shall in particular be provided the opportunity to be heard in
any judicial and administrative proceedings affecting the child, either directly, or through a
representative or an appropriate body, in a manner consistent with the procedural rules of
national law.‟
Closer to home, in terms of the African Charter on the Rights and Welfare of the Child,
1990 (ACRWC)9 the following obligation is placed on the States in Article 4(2):
„In all judicial or administrative proceedings affecting a child who is capable of communicating
his [or] her own views, an opportunity shall be provided for the views of the child to be heard
either directly or through an impartial representative as a party to the proceedings and those
views shall be taken into consideration by the relevant authority in accordance with the
provisions of appropriate law.‟

[20] The child‟s right to have separate legal representation during legal proceedings
in a matter such as this is thus clearly contemplated by those provisions. Both
specifically envisage that the child may participate „through a representative‟. The
ACRWC goes further than the UNCRC in stating that the child may participate through
an „impartial representative as a party to the proceedings‟. The child‟s right to be heard
and to have his or her views taken into account, in terms of the UNCRC and ACRWC,

8 Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of
20 November 1989, entered into force 2 September 1990, in accordance with article 49. Signed by the
Republic of South Africa in 1993 and ratified on 16 June 1995.
9 Adopted by the Organisation of African Unity in 1990 and entered into force on 29 November 1999.
OAU Doc. CAB/LEG/24.9/49 (1990). Signed by the Republic of South Africa on 10 October 1997, ratified
on 7 January 2000 and deposited on 21 January 2000.

has been recognised as forming part of South African law.10 The importance of the
child‟s participation was emphasised in Christian Education South Africa v Minister of
Education 2000 (4) SA 757 (CC) para 53. The Constitutional Court there held:
„There is a further observation to be made. We have not had the assistance of a curator ad litem
to represent the interests of the children. It was accepted in the High Court that it was not
necessary to appoint such a curator because the State would represent the interests of the
child. This was unfortunate. The children concerned were from a highly conscientised
community and many would have been in their late teens and capable of articulate expression.
Although both the State and the parents were in a position to speak on their behalf, neither was
able to speak in their name. A curator could have made sensitive enquiries so as to enable their
voice or voices to be heard. Their actual experiences and opinions would not necessarily have
been decisive, but they would have enriched the dialogue, and the factual and experiential
foundations for the balancing exercise in this difficult matter would have been more secure.‟

[21] In MEC for Education, KwaZulu-Natal & others v Pillay 2008 (1) SA 474 (CC)
para 56, Langa CJ pointed out:
„Legal matters involving children often exclude the children and the matter is left to adults to
argue and decide on their behalf. In Christian Education South Africa v Minister of Education
this court held in the context of a case concerning children that their “actual experiences and
opinions would not necessarily have been decisive, but they would have enriched the dialogue,
and the factual and experiential foundations for the balancing exercise in this difficult matter
would have been more secure.” That is true for this case as well. The need for the child‟s voice
to be heard is perhaps even more acute when it concerns children of Sunali‟s age who should
be increasingly taking responsibility for their own actions and beliefs.‟ (Footnotes omitted.)
Children have always received assistance through the common law. Herbstein and Van
Winsen state that a child must be assisted by a guardian to institute legal proceedings.11
Legal proceedings instituted by a child, without the assistance of a guardian, may be
ratified by that child‟s guardian. Furthermore, if a child wants to litigate and does not

10 McCall v McCall 1994 (3) SA 201 (C) at 204J-205G; Lubbe v Du Plessis 2001 (4) SA 57 (C) at 73F;
Soller NO v G & another 2003 (5) SA 430 (W) para 8; R v H & another 2005 (6) SA 535 (C) 439 para 6.
11 Andries C Cilliers, Cheryl Loots and Hendrik C Nel Herbstein and Van Winsen: The Civil Practice of the
High Courts and the Supreme Court of Appeal of South Africa 5 ed (2009) at 160-164.

have assistance from a guardian, a curator ad litem must be appointed for the child. A
child may litigate without assistance if the High Court grants him or her venia agenda.12

[22] The drafters of our Constitution13 appeared to recognise that there may well be
circumstances where, notwithstanding the common law protection, additional assistance
may be required by children in specific instances. Accordingly, the right of children to be
legally represented in civil matters was included in the Constitution. Thus, s 28(1)(h) of
the Constitution, guarantees State-funded legal representation, as one incident of the
right of children to participate in matters affecting them. It provides:
„Every child has the right to have a legal practitioner assigned to the child by the State, and at
State expense, in civil proceedings affecting the child, if substantial injustice would otherwise
result‟.
Section 28(1)(h) affords every child a right to legal representation at State expense in
civil proceedings affecting a child if substantial injustice would otherwise result. The
right is triggered, not only when the child is a party to the proceedings, but whenever he
or she is affected by the litigation. The child is then entitled, not merely to be heard, but
to be afforded the envisaged legal representation at State expense.

[23] The Children‟s Act 38 of 2005 was drafted pursuant to South Africa‟s obligations
in terms of the UNCRC, the ACRWC and the Constitution. Sections 10, 14 and 15 of the
Children‟s Act are a cluster of provisions designed to ensure that children‟s rights are
protected and their dignity is upheld in any proceedings affecting them. Section 10 of
the Children‟s Act entitles every child to participate „in an appropriate way‟ in any matter
„concerning the child‟. It adds that the „views expressed by the child must be given due
consideration‟.14 Section 14 recognises the right of every child to have access to court
for the protection and enforcement of their rights. It further entitles every child „to be
assisted in bringing a matter to a court‟.15 Section 15 deals with the enforcement of

12 Herbstein & Van Winsen op cit note 11 at 160-164. See also Ex Parte Goldman 1960 (1) SA 89 (D).
13 The Constitution of the Republic of South Africa, 1996.
14 Section 10 provides:
„Every child that is of such an age, maturity and stage of development as to be able to participate in any
matter concerning that child has the right to participate in an appropriate way and views expressed by the
child must be given due consideration.‟
15 Section 14 provides:

fundamental rights and reinforces the broad standing provisions of s 38 of the
Constitution specifically in relation to children.16 It would thus seem that the legislature
intended to create wide and generous mechanisms for the protection and enforcement
of children‟s rights beyond that available to them at common law. The language of ss 14
and 15 is clear and unequivocal. Section 14 emphatically states that every child has the
right to bring a matter to court. It states further that a child may be assisted in bringing
the matter to court. It does not state who must assist and does not repeat the common
law requirement of being assisted by a guardian.

[24] In terms of s 28(2) of the Constitution, in all matters concerning children –
including any litigation concerning them17 – their best interests are of paramount
importance.18 Section 28(2) must be interpreted so as to promote the foundational
values of human dignity, equality and freedom.19  The reach of s 28(2) extends beyond
those rights enumerated in s 28(1): it creates a right that is independent of the other
rights specified in s 28(1).20 Section 28(2), read with s 28(1), establishes a set of rights

„Every child has the right to bring, and to be assisted in bringing a matter to a court, provided that matter
falls within the jurisdiction of that court.‟
16 Section 15 provides:
„(1) Anyone listed in this section has the right to approach a competent court, alleging that a right in the
Bill of Rights or this Act has been infringed or threatened, and the court may grant appropriate relief,
including a declaration of rights.
(2) The persons who may approach a court, are:
(a) A child who is affected by or involved in the matter to be adjudicated;
(b) Anyone acting in the interest of the child or on behalf of another person who cannot act in their own
name;
(c) Anyone acting as a member of, or in the interest of, a group or class of persons; and
(d) Anyone acting in the public interest.‟
17 Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development &
others 2009 (2) SACR 130 (CC); S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539
(CC) para 14-26.
18 International law also affirms the „best interests‟ principle and many countries have subsequently
incorporated it into their constitutions or child and family legislation. Article 3(1) of the UNCRC requires
that: „In all actions concerning children, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a
primary consideration.‟ Similar pronouncements are found in art 4(1) of the ACRWC. See Neo Morei
„Where for maintenance law as child support grants and defaulters put it to the test‟ (2014) 5
Mediterranean Journal of Social Sciences 756 fn 6.
19 Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development &
others 2009 (4) SA 222 (CC) para 72.
20 DPP, Transvaal v Minister of Justice and Constitutional Development & others (above) para 72.

that courts are obliged to enforce.21 In S v M (Centre for Child Law as Amicus Curiae)
2007 (2) SACR 539 (CC) para 15, the Constitutional Court observed that:
„The ambit of the provisions is undoubtedly wide. The comprehensive and emphatic language of
s 28 indicates that just as law enforcement must always be gender-sensitive, so must it always
be child-sensitive; that statutes must be interpreted and the common law developed in a manner
which favours protecting and advancing the interests of children; and that courts must function
in a manner which at all times shows due respect for children's rights. As Sloth-Nielsen pointed
out:
“(T)he inclusion of a general standard („the best interest of a child‟) for the protection of
children‟s rights in the Constitution can become a benchmark for review of all proceedings in
which decisions are taken regarding children. Courts and administrative authorities will be
constitutionally bound to give consideration to the effect their decisions will have on children‟s
lives.”‟
Thus in Director of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development & others 2009 (4) SA 222 (CC) para 115, the Constitutional
Court pointed out:
„In S v F, for example, the court equated an enquiry into the desirability of appointing an
intermediary with a trial in which the State bears the burden of proof to establish the need for
the appointment of an intermediary on a balance of probabilities. I am unable to agree with this
view. This approach to the enquiry overlooks the objectives of the enquiry. The overriding
consideration at that enquiry is to prevent the child from exposure to undue stress that may
arise from testifying in court. What is required of the judicial officer is to consider whether, on the
evidence presented to him or her, viewed in the light of the objectives of the Constitution and
the subsection, it is in the best interests of the child that an intermediary be appointed‟.

[25] Professor Trynie Boezaart notes that:22
„There are two ways in which children can be allowed, in the words of the [UNCRC], to “express
their views freely” in matters that affect them, namely by means of participation and
representation. “Participation” would refer to all the rules that allow the child to be heard directly,
without an intermediary. It includes rules that require children to be consulted about their
opinion, or enable children to become parties to legal actions, so that they have the right to

21 S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC) para 14.
22 Trynie Boezaart „General principles‟ in C J Davel & A M Skelton Commentary on the Children’s Act
(Revision Service 6, 2013) at 2-15.

participate in proceedings and/or demand a certain remedy. “Representation” is used to indicate
the rules that allow children to instruct attorneys, to seek legal advice or to have other kinds of
adult representation in legal proceedings.‟ (Footnotes omitted.)
Here the CCL, in consultation with the children, elected to act in the interests of a group
of children (including other similarly situated children) and in the public interest for inter
alia the following reasons: The children expressed clear and strong views and opinions
in respect of the case – independent of the views and opinions of their parents and
communicated some information that they were reluctant to share with their parents.
They requested that their experiences of being at Hoërskool Fochville be placed before
the court. Those parents who met with the CCL supported the idea of the children being
separately represented in the matter. At the time of the intervention application by the
CCL, the parents were not yet separately represented – they later secured separate
legal representation by SECTION27.23 Allowing them to complete the questionnaires
individually and consulting with them in small groups ensured that the children‟s views
and experiences were properly collated and articulated in one affidavit, thus allowing the
court to get a full range of views without having to read some 37 affidavits. This
approach appears to be more protective of the children. The children described
victimisation within the school, especially by other children, and if cited individually and
deposed to their own affidavits, they ran the potential risk of being vulnerable to
reprisals or further victimisation. The 37 children directly affected expressed concern
about siblings and neighbours who may need to attend the School in the future. The
interests of children similarly placed as the children currently affected therefore may
also require safeguarding. The CCL‟s approach in this regard is consistent with that
advocated by Professor Noel Zaal and Ann Skelton that
„It is necessary to promote a children‟s rights culture in . . . court proceedings, and
therefore the representative would ideally wish to be supporting the wishes and
instructions of the child. The child must, if possible, be convinced that the legal

23 SECTION27 is a public interest law centre having as its main objective to influence, develop and use
the law to protect, promote and advance human rights. Its name is drawn from s 27 of the Constitution
which enshrines everyone‟s right to health care, food, water and social security. See the organisation‟s
website at http://section27.org.za/, accessed on 7 October 2015.

representative is his or her very own who will see that his or her views and hopes gain
priority at the hearing.‟24

[26] Accordingly, as I have endeavoured to show, in every weighing of rights and
interests and any value judgment relating to whether the questionnaires should be
produced, the best interests of the children would have to be the paramount
consideration. Thus even if the questionnaires were not protected by privilege or if the
privilege had been waived, it may not have been appropriate for the court a quo to have
ordered their disclosure on the basis that it would not have been in the children‟s best
interests to do so. The CCL explained why the children specifically requested that their
confidentiality be protected. The court a quo took the view that the CCL could not refuse
to produce the questionnaires on the grounds of confidentiality. But as Moseneke DCJ
pointed out in Independent Newspapers v Minister for Intelligence Services: In re
Masetlha v President of the Republic of South Africa & another 2008 (5) SA 31 (CC)
para 27:
„Even before the advent of the Constitution, courts often, and correctly in my view, recognised
that when there is a claim of confidentiality over information that is sought to be discovered or
disclosed other considerations of fairness arise. These are well recognised by Schutz AJ in
Crown Cork & Seal Co Inc & another v Rheem South Africa (Pty) Ltd & others (Crown Cork):25
[A conflict arises] between the need to protect a man‟s property from misuse by others, in this
case the property being confidential information, and the need to ensure that a litigant is entitled
to present his case without unfair halters. And, although the approach of a Court will ordinarily
be that there is a full right of inspection and copying, I am of the view that our Courts have a
discretion to impose appropriate limits when satisfied that there is a real danger that if this is not
done an unlawful appropriation of property will be made possible merely because there is
litigation in progress and because the litigants are entitled to see documents to which they
would not otherwise have lawful access. But it is to be stressed that care must be taken not to
place undue or unnecessary limits on a litigant‟s right to a fair trial, of which the discovery
procedures often form an important part.‟26

24 Noel Zaal & Ann Skelton „Providing effective representation for children in a new constitutional era:
Lawyers in the criminal and children's courts‟ (1998) 14 SAJHR 539 at 554.
25 Crown Cork & Seal Co Inc & another v Rheem South Africa (Pty) Ltd & others (Crown Cork) 1980 (3)
SA 1093 (W).
26 Id at 1100A-C.

[27] The concern expressed in this case is that the children may suffer prejudice
should they be identified as the makers of some of the statements in the questionnaires.
At the very least, the children appear to believe that they will. There is nothing to
suggest that their perception in that regard is not genuinely held. In those
circumstances, there is much to be said for the argument that disclosure of the
questionnaires would not be in their best interests. That is not to suggest, to employ the
language of Sutherland J, that the best interest principle operates as a trump because
as the Constitutional Court pointed out in S v M (Centre for Child Law as Amicus
Curiae) 2007 (2) SACR 539 (CC) 'the fact that the best interests of the child are
paramount does not mean that they are absolute‟. It is thus but a starting point for any
balancing of rights. Of course in appropriate circumstances and as part of that balancing
act a court could endeavour to impose suitable conditions relative to the production and
inspection.

[28] Here the School has failed to show why their interests should outweigh those of
the children. On that score, in his replying affidavit, Mr Erasmus stated:
„32.5
The intervening party‟s statement that the applicants will not be placed in a better
position to answer the allegations should they be given access to the questionnaires, is denied.
This is for the applicants to decide after disclosure of the documents, not for the intervening
party to decide in order to evade disclosure.‟
Tellingly, he does not inform the court why the School could not oppose the intervention
application without the benefit of the questionnaires. Ms Du Toit‟s affidavit captures the
lived experiences of the children. It bears noting that no relief was sought against the
School in respect of the incidents complained of. The School thus did not require to
know the precise details of each incident in order to respond to CCL‟s application to
intervene.  In the event, there was no justifiable basis for holding that the interests of the
School in investigating the identities of the children in order to answer the allegations
outweighed the interests of the children in not having their identities disclosed,
especially in the light of the fact that the children had disclosed the information (which
they otherwise may not have done) on condition of, and in the expectation of, their
identities not being disclosed.

[29] It seems clear that the litigation concerns the children. It also seems clear that
the children wish to participate in it at least to the extent that their views and perceptions
of the school are considered. The question is whether the use of a summary of their
sentiments in an overarching affidavit by Ms Du Toit, without supporting affidavits by
them and disclosure of their individual questionnaires, is an appropriate way for them to
do so. The school could point to no prejudice to it. It further cannot be said that, if the
CCL is joined in the application, this is not an appropriate way for the children to
participate in the litigation. The court below held that the hearsay nature of the evidence
adduced by the CCL required the disclosure of the questionnaires. The CCL adduced
the evidence in hearsay form so as to protect the identities of the children, conscious
that the admissibility and weight of the evidence would be considered in due course on
the basis that it is hearsay evidence. The questions of admissibility and weight of the
evidence were thus not issues to be determined in this application. The School
obviously retained the right to oppose the admission of the hearsay evidence and to
argue that it should be accorded little weight, if admitted. But those are matters that
would obviously have had to be canvassed and ultimately decided in either the
intervention or main application in due course.

[30] It follows, for the reasons given, that the Uniform rule 30A application ought not
to have succeeded before the court below. Accordingly, the appeal must succeed. As to
costs: CCL, commendably, did not seek costs either in this court or the one below. In
the result, the appeal succeeds and the order of the court below is set aside and
replaced with:
„The application is dismissed‟.

____________
V M Ponnan
Judge of Appeal

APPEARANCES:

For Appellant:

W Trengove SC (with him J Brickhill)

Instructed by:

Legal Resources Centre, Grahamstown

Honey Inc., Bloemfontein

For Respondents:

A Kemack SC (with him C Dreyer)

Instructed by:

Erasmus De Klerk Inc., Johannesburg

Webbers, Bloemfontein