THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 512/10

LEGAL AID BOARD

In the matter of

FOUR CHILDREN
Applicants in the court a quo

Neutral citation: Legal Aid Board in re Four Children (512/10) [2011]
ZASCA 39 (29 March 2011)

Coram:
NAVSA, NUGENT, HEHER and CACHALIA JJA
and PETSE AJA

Heard:
1 MARCH 2011

Delivered:
29 MARCH 2011

Summary:
Jurisdiction of Supreme Court of Appeal – confined to
appeals – case before it not an appeal – no order made.

_______________________________________________________________________

ORDER
_______________________________________________________________________

On appeal from: High Court Eastern Cape, Port Elizabeth (Schoeman J
sitting as court of first instance)

No order is made.

_______________________________________________________________________

JUDGMENT
_______________________________________________________________________

NUGENT JA (NAVSA, HEHER and CACHALIA JJA and PETSE AJA
concurring)

[1] The authority of the courts emanates from and is circumscribed by
the Constitution. The constitutional authority of this court is confined to
deciding appeals and issues connected with appeals.1 What has been
placed before us is not an appeal although it has been presented as such.
In truth it is an application by the Legal Aid Board2 for a declaratory
order concerning its rights. This court has no original jurisdiction to hear
such an application.3

1Section 168(3). It may also hear matters that may be ‘referred to it in circumstances defined by an Act
of Parliament’ but that has no application in this case.
2Established by s 2 of the Legal Aid Act 22 of 1969. In the papers it called itself Legal Aid South
Africa but I have referred to it by its statutory name.
3It might be that the Constitutional Court could entertain an appeal in the form that the case has been
presented to us (cf Campus Law Clinic, University of KZN v Standard Bank of SA Ltd  2006 (6) SA 103
(CC)) but its jurisdiction is not confined in the same terms.

[2] While that is the short answer to this case it is necessary to trace in
some detail how the matter came to be before us to explain my
conclusion. Before doing so I need to deal with two preliminary matters.

[3] The case has its origin in an application that was brought in the
high court by four children, with the assistance of the Legal Aid Board, to
protect their interests in a dispute between their parents. The dismissal of
the application prompted this purported appeal. Neither the children nor
their parents are parties before us although they are reflected as such in
various documents that have been filed. The purported appellant is the
Legal Aid Board and there is no respondent.  The Centre for Child Care
and the Family Advocate4 intervened in the matter to make submissions.

[4] Shortly before the matter was to be heard a letter was received by
this court from an attorney who had been consulted by the mother of the
children. Following upon what she told him the attorney consulted with
the children and also obtained the services of a social worker to do the
same. He informed us that both he and the social worker were told by the
children that they had not authorised the proceedings, that until recently
they were unaware that the proceedings had been brought, that they were
distressed that the proceedings were before us, and that they felt that their
privacy had been invaded.

[5] On our direction a letter was addressed to the Legal Aid Board,
asking whether in the circumstances it was entitled to persist in the
proceedings. Its reply was that it indeed intended to proceed. The fact that
the Legal Aid Board feels itself able to proceed in the absence and against
the wishes of the parties whose rights were there in issue seems to me by

4 Appointed under s 2 of the Mediation in Certain Divorce Matters Act 24 of 1987.

itself to demonstrate ineluctably that this is not an appeal in that
application but is a fresh application by the Legal Aid Board concerning
its own rights. The earlier application has merely served as its
springboard.

[6] It is unfortunate that the children and their parents were not
informed of the Legal Aid Board’s intentions, albeit that the case no
longer concerned their interests directly. To avoid any further invasion of
their privacy we directed at the outset of the hearing that the identity of
the children and their parents must not be made public any further than
has already occurred and we repeat that direction. In this judgment I have
not referred to them by name but instead by the relationship that they bear
to one another.

[7] The letter that we addressed to the Legal Aid Board might have
alerted it to the question whether this court has jurisdiction in the matter
but at the outset of the hearing it soon became evident that it had not been
considered. We accordingly allowed counsel an opportunity to consider it
but she was not able to advance any submissions of substance on the
issue. In the absence of such submissions we concluded that we had no
jurisdiction and for that reason we have not heard oral argument on the
merits of the case. We have nonetheless had the advantage of informing
ourselves of the submissions that would have been advanced so far as
they are contained in heads of argument that have been filed.

[8] At the time the application was brought three of the children were
11 years old and the fourth was 14. Their parents were divorced. At the
time of the divorce a consent order had been made granting them joint
custody of the children. At first both parents lived in the same city and an

harmonious arrangement existed between them for mutual access to the
children.

[9] Some time later their mother wanted to relocate to another country
and to take the children with her but their father objected. Their mother
applied to the high court for an order authorising her to take the children
but the order was refused. The mother abandoned those plans but later
she moved to another city in South Africa. Again she wanted the children
to accompany her and that prompted a repetition of the earlier dispute.

[10] The children found themselves being caught up in the dispute
between their parents. With further litigation looming they approached a
Justice Centre for assistance. (The Justice Centre is the name under which
the Legal Aid Board performs its functions in various regions and I will
use the names interchangeably). The Justice Centre wrote to the mother’s
attorneys requesting an undertaking that the children would not be
relocated, and would not be placed under any pressure to do so, failing
which an application would be made to court for appropriate relief. The
mother’s attorneys replied that the Justice Centre had no standing to bring
legal proceedings, advised that she was averse to it representing the
children, and warned that if proceedings were brought punitive costs
might be sought against the relevant officer of the Justice Centre
personally. Undeterred by that unwarranted threat an application was
brought before the high court. The children were the applicants but they
were assisted to bring the application by the Justice Centre.

[11] The immediate hurdle to be overcome was that a minor is not
generally competent to engage in litigation without the assistance of his

or her guardian. In this case their guardians were obviously disqualified
from doing so because they would have had a conflict of interest.

[12] The law in this country has always been conscious of such a
difficulty and it provides a ready and simple mechanism to overcome it. It
confers upon the courts a wide discretion to appoint a person to substitute
the guardian – commonly known as a curator ad litem, meaning, if the
Latin term is intimidating, no more than a person to conduct litigation in
the name and in the interests of the minor.5 As early as 1902 the subject
was dealt with comprehensively by the author of The Judicial Practice of
South Africa6:
‘Such curator is appointed by the Court upon the petition of the minor, or, if he is too
young to understand it, of some relative or friend or some one who can shew a
reasonable interest in him, setting forth that he has no guardian, and is about to
institute, or defend, an action at law, and stating also briefly the nature of the case,
and praying the Court to appoint a curator ad litem to represent him.
…
A minor may have a curator ad litem appointed for him even against his will, or
without his knowledge, if it can be shewn to the Court that the application will be for
his benefit and to his interest.
…
As a general rule a near relative is appointed curator ad litem, but this is discretionary
with the Court, and frequently the advocate or attorney employed for the minor has
been appointed as such.
From the time of the appointment of the curator ad litem, the action is to be
conducted in the name of the minor, duly assisted by his curator …

5 Blacks Law Dictionary defines a curator ad litem as ‘a person who is appointed by a court to
represent the interests of a youth … during proceedings before the court’. The South African Judicial
Dictionary defines the term to mean ‘a curator appointed by the court to protect the interests of some
party to a legal proceedings who is unable, or is alleged to be unable, to protect his own interests’.
6 C H Van Zyl The Theory of the Judicial Practice of the Colony of the Cape of Good Hope and of
South Africa Generally 2ed (1902) pages 21-22. See, too, Boberg’s Law of Persons and the Family 2ed
by Belinda van Heerden, Alfred Cockrell and Raylene Keightley pp. 902-907.

The duty of a curator ad litem is to represent the minor in the particular case then
pending, and to watch and protect his interest in the case as a good and prudent father
would have done….
A curator ad litem may be removed by the Court for the same reasons as an attorney
employed in a case. He may also resign his office, but it is in the discretion of the
Court to accept or not to accept his resignation.’

[13] The discretion that a court has is as broad as is required to meet
every exigency and, if necessary, the court is capable of supplementing or
altering the ordinary authority of a curator so far as the occasion requires.
Its sole guide in exercising its discretion is the best interests of the minor.

[14] A curator who does not have the appropriate qualifications and
skills to conduct the litigation might employ a legal representative to
assist in the ordinary way, but a curator who has those qualifications and
skills will naturally not find it necessary to do so. Indeed, it is common
for legal practitioners to be appointed to that office, and to conduct the
litigation themselves, and there can be no objection unless that creates a
conflict of interest.7

[15] Thus all that was required to overcome the initial hurdle in this
case was for the children – or the Justice Centre on their behalf – to ask
the court to appoint a suitable employee of the Justice Centre as curator in
the exercise of its ordinary discretion. Instead a more complex route was
chosen.

7 In Martin NO v Road Accident Fund 2000 (2) SA 1023 (W) at 1034B-C Wunsh J said that it is
undesirable for a person to be both curator and legal representative. But that was said in the context of
cases where the earning of professional fees might create a conflict of interest. Whether a conflict of
interest will arise by acting in both capacities will depend upon the particular case. For the appointment
of legal practitioners to that office generally see 1034H-1039D. Needless to say, the particular
practitioner should be a suitable person: cf Soller NO v G 2003 (5) SA 430 (W) para 16.

[16] Two distinct forms of order were claimed. The first was a
preliminary order in the following terms:
‘In so far as it is necessary, [appointing] alternatively [condoning] the appearance of
the Justice Centre as legal representative for the Applicants in asserting their
constitutional right to be heard in civil proceedings affecting them’.
The second claim was for substantive relief restraining the mother from
removing the children to the city she intended locating to until such time
as the custody order had been amended by a court, and restraining both
parents from discussing the matter with the children other than in the
presence of the Justice Centre or its nominee. A temporary order to the
latter effect was asked for pending the finalisation of the application for
those orders.

[17] The application was brought as a matter of urgency and the
supporting affidavits were brief. The founding affidavit was deposed to
by the oldest child (the first applicant, the remaining children being the
second, third and fourth applicants). It set out briefly the factual
circumstances that had arisen. The application was supported by an
affidavit deposed to by an employee of the Justice Centre, explaining why
it was considered necessary for the substantive relief to be granted. He
also expressed the opinion that ‘it is not necessary to bring a prior
application to represent the children’ but that ‘in so far as it may be
necessary we will ask for an order condoning our representation of the
children’. He went on to say that he wished to assure the court that ‘we
act in this application only to give the children the voice that they need to
enforce their best interest’.

[18] The appointment of an employee of the Legal Aid Board as curator
would have met everything that was avowedly required and might have

been done by granting the preliminary order in suitably modified form.
The case was presented instead as an application for the appointment of a
legal practitioner under s 28(1)(h) of the Constitution (which accounts for
the view expressed in the affidavit that authorisation was not in truth
required, and for the form in which the order was couched). That section
affords children the right to have a legal practitioner assigned to him or
her by the state in civil proceedings affecting the child if substantial
prejudice would otherwise result.

[19] It is not clear to me why that section was invoked. The
Constitutional Court has said repeatedly that where it is possible to decide
any case without reaching a constitutional issue then that is the course
that must be followed and it has directed the courts accordingly.8 No
more was required for the Justice Centre to achieve its avowed aim than
to have one of its employees appointed curator. Where a curator is not
able personally to conduct the litigation then no doubt a child is entitled
to have a legal practitioner assigned under that section but that was not
the present case.

[20] The application came before Schoeman J. It was taken further off
course by the view that she took of the matter. She said that the duty of a
legal practitioner contemplated by s 28(1)(h) would have been ‘to
advance the case of the children’ (which was no doubt correct)9 but that
that was not what the case called for. She said that it called for a person

8S v Mhlungu 1995 (3) SA 867 (CC) para 59;  Zantsi v Council of State, Ciskei 1995 (4) SA 615 (CC)
paras 3 and 4; Ferreira v Levin NO; Vryenhoek v Powell NO 1996 (1) SA 984 (CC) para 7;  Gardener
v Whitaker 1996 (4) SA 337 (CC) para 14; S v Bequinot 1997 (2) SA 887 (CC) para 12; Motsepe v
Commissioner for Inland Revenue 1997 (2) SA 898 (CC) para 21; National Coalition for Gay and
Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) para 21;  Minister of Education v
Harris 2001 (4) SA 1297 (CC) para 19; Ex parte Minister of Safety and Security: In re S v Walters
2002 (4) SA 613 (CC) paras 64 and 65; Jaftha v Schoeman; Van Rooyen v Stoltz 2005 (2) SA 140 (CC)
para 9.
9 Cf Soller NO, above, para 26.

‘exercising independent judgment…with the necessary objectivity that is
needed’, which, she said, was the function of a curator. Along that line of
reasoning she concluded that ‘the applicants are not entitled to approach
the court without the assistance of a curator ad litem’ and she dismissed
the application accordingly. (The learned judge went on to make a further
order that is not now material.)

[21] The learned judge was clearly incorrect. The case indeed called for
the appointment of a person to advance the case of the children – for how
else was their case to be advanced? And it is not the function of a curator
to adopt a so-called objective approach. The Family Advocate is available
to provide neutral assistance should that be required.10 The function of a
curator is to advance the case of the minor. Indeed, this court has had
occasion to reprimand a curator who approached his task along the lines
suggested by the learned judge. In Du Plessis NO v Strauss11 an order had
been made by a court in favour of the persons represented by the curator.
On appeal the curator presented argument in favour of the appeal because
he considered that ‘it would assist the court if he adopted a “more
objective” approach’.12 Van Heerden JA took him to task in the following
words (my translation):
‘This approach was manifestly in conflict with his duties, because it is hardly
necessary to say that a curator-ad-litem’s own view is irrelevant and that what is
expected of him is to advance all possible arguments advantageous to the relevant
minors and unborn children ...’13

10Soller NO, above, para 26.
111988 (2) SA 105 (A).
12At 145J.
13At 146A-B.

[22] The court could there and then have appointed counsel for the
Justice Centre as curator14 and then turned to the substantive relief that
had been claimed, and in my view it ought to have done so, but that is
now water under the bridge. Shortly after the application was dismissed
the mother moved to another city and took the children with her. Their
father then brought an urgent application for orders to the effect that the
children should be returned and should reside with him unless the consent
order was varied. The application was dismissed by Kroon J on 12
January 2010. The factual position that then prevailed rendered moot the
application that had been decided by Schoeman J. Indeed, the family
difficulties have happily been resolved.  Both parents now live once more
in the same city and the harmonious arrangement that prevailed before
has been restored.

[23] That notwithstanding, the Legal Aid Board filed what purported to
be an application to the high court for leave to appeal. An affidavit
deposed to by one of its employees was filed in support of the
application, which is unusual in an application for leave to appeal. He
frankly acknowledged that the Legal Aid Board had no mandate from the
children and set about explaining why the application was nonetheless
being brought. I need not recite his explanation in full. In summary he
said that the Legal Aid Board had a constitutional duty to assist children
to assert their constitutional rights, that the judgment of Schoeman J
threatened to hamper it in fulfilling its duty, and that it wanted to have
clarity as to its rights.

[24] The principal way in which it would be hampered, so the deponent
said, was that the judgment had the effect that ‘in each matter an

14Cf Yu Kwam v President Insurance Co. Ltd 1963 (1) SA 66 (T) at 69-70.

independent curator should be appointed [which would mean] that
suitably qualified attorneys and advocates in private practice will have to
be appointed … and this will have a negative effect on our budget for
civil litigation for children’. Absent the errors of the learned judge that is
not correct. I have pointed out that there is no bar to an employee of the
Justice Centre being appointed curator to a minor. Indeed, employees of
the Legal Aid Board will generally be admirably suited to such an
appointment. They will seldom have a conflict of interest – as private
practitioners might have – and yet they have the qualifications and skills
to conduct the litigation without further outside assistance.

[25] The Legal Aid Board turned once more to the Constitution to
overcome its perceived difficulties – on this occasion to s 38. That section
entitles anyone acting in the public interest to approach a competent court
for a declaration of rights in certain circumstances.15 Invoking that section
the deponent concluded as follows:
‘[We] request the above Honourable Court to allow Legal Aid South Africa to
proceed in its own name, in the public interest, to seek leave to appeal against the
legal question of locus standi only and to grant leave to appeal as set out in the Notice
of Motion to which this affidavit is attached’.
It sought orders in the following terms:
‘1.
That Legal Aid South Africa is granted leave to act in this appeal in the public
interest.
2.
That leave to appeal is granted against the decision that the children do not
have locus standi to act in their own names’.

15  Section 38: ‘Anyone listed in this section has the right to approach a competent court, alleging that a
right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief,
including a declaration of rights. The persons who may approach a court are –
….
(d) anyone acting in the public interest’
….’

[26] It will be apparent that leave to appeal in the terms set out in the
second prayer is not competent. It is trite that an appeal lies against an
order that is made by a court and not against its reasons for making the
order.16 The ‘decision that the children do not have locus standi to act in
their own names’ was not an order made by the court but no more than
the reason given for the order.

[27] The application came before Schoeman J who similarly invoked
s 38 of the Constitution. In a short judgment the learned judge said that an
application contemplated by that section is permitted ‘even if there is no
live case’. After considering what was meant by ‘public interest’ for
purposes of that section she concluded that the Legal Aid Board was an
‘interested party’ (presumably meaning that it fell within the terms of that
section). On that basis she made the following order:
‘I grant leave to appeal to [Legal Aid] to appeal to the Supreme Court of Appeal
against the dismissal of this application and to obtain a declarator on the legal
standing of children to initiate legal proceedings’.

[28] Although the learned judge granted leave to appeal against the
order dismissing the application, that is not what was asked of her by the
Legal Aid Board, and before us counsel expressly disavowed an intention
to appeal against the order. What it wanted from us was only declaratory
relief that was expressed as follows in its heads of argument:
‘That where Legal Aid South Africa assign a legal representative to a child in terms of
its Constitutional mandate to act in the best interest of that child, that the said child
will have locus standi to litigate to protect a constitutional right without the consent of
that child’s parent/s or without the consent of the Court’.

16L T C Harms Civil Procedure in the Superior Courts C1.26, and generally the jurisdictional
requirements for an appeal at C1.16.

[29] I see no reason why the ordinary discretionary powers of the courts
at common law do not suffice for the Legal Aid Board to perform its
mandate, nor why their ordinary supervisory function needs to be
dispensed with in order for it to do so, particularly if the wishes of
guardians are to be overridden. But no doubt it is entitled to invoke s 38 if
it feels that to be necessary,17 though a claim for a declaration that is as
profound as that will undoubtedly call for notice to be given to interested
parties – not least the relevant minister of state who is charged with
responsibility for the welfare of children18 – which has not occurred in
this case.

[30] From the approach that was taken to this matter I think it
abundantly clear that both the Legal Aid Board and the court below
considered that the case should be placed before us to serve as an
application for a declaratory order under s 38. What they both overlooked
is that this court has no original jurisdiction to consider an application of
that kind. This court is a court of appeal and its jurisdiction is limited
accordingly. The case that is before us is not properly an appeal and I
think that we are bound to make no order in the matter.

_________________
R W NUGENT
JUDGE OF APPEAL

17In the affidavit filed in support of the purported application for leave to appeal it was said that in
Legal Aid Board v R 2009 (2) SA 262 (DCLD) Wallis AJ had ‘ruled that Legal Aid South Africa has
locus standi, without an application to court, to represent children in court’. The learned judge made no
such ruling. He did no more than to express a view to that effect in the cover of a discursus that was not
germane to the issue before him.
18 Cf Campus Law Clinic, above, para 27.

APPEARANCES:

For Legal Aid Board:
E Crouse

J M Coertzen

For Centre for Child Law:
A M Skelton

For Family Advocate:
B Pienaar SC

L Ah-Shene