Civil procedure:

The New Children's Act

Danie van Loggerenberg SC, Leon Dicker and Jacques Malan

The commencement date for certain sections of the new Children’s Act 38 of 2005 was 1 July 2007*. Among the provisions that came into operation is s 17, in terms of which a child, whether male or female, becomes a major on reaching the age of 18 years. In addition, a ‘child’ is defined in s 1 as a person under the age of 18 years. In schedule 4, the Age of Majority Act 57 of 1972, the Guardianship Act 192 of 1993 and the Natural Fathers of Children Born Out of Wedlock Act 86 of 1997 are all repealed with effect from 1 July 2007.

In terms of s 14 of the Act, every child has the right to bring – and to be assisted in bringing – a matter to court, provided that matter falls within the jurisdiction of that court. This provision must be read with s 18, which sets out the content of parental responsibilities and rights in respect of a child. One of the parental responsibilities and rights set out in s 18(2) is the right and responsibility to act as a guardian of the child. A parent or other person who acts as a guardian of a child must, in terms of s 18(3), administer and safeguard the child’s property and property interests; assist or represent the child in administrative, contractual and other legal matters; and give or refuse any consent required by law in respect of the child including consent to the child’s marriage, adoption, departure or removal from the Republic, the child’s application for a passport and consent to the alienation or encumbrance of any immovable property of the child. Where more than one person has guardianship of a child, each of them is competent, subject to certain specified circumstances, to exercise independently and without the consent of the other, any right or responsibility arising from such guardianship. Assisting or representing the child in administrative, contractual and other legal matters does not fall within the exceptions and the assistance or representation of the child by a single guardian is therefore competent. Section 30 reiterates that more than one person may hold parental responsibilities and rights in respect of the same child. When that is the case, each of the co-holders may act without the consent of the other(s) when exercising those responsibilities and rights, except where the Act, any other law or an order of court provides otherwise.

The most obvious change regarding the representation of minors is the new age of majority, which, from 1 July 2007, is 18 years. There is, therefore, now no longer any difference in content between the concepts ‘child’ and ‘minor’.

Both now refer to a person under the age of 18 years. The principle that in legal proceedings by or against a minor, he must be assisted by a guardian, remains unchanged. So does the principle that a minor need be assisted or represented only by a guardian, if he has more than one guardian. In terms of the now repealed Guardianship Act 192 of 1993, both a father and mother had guardianship of a minor child of their marriage and each of them was competent, subject to certain exceptions, to exercise independently and without the consent of the other, any right or power or to carry out any duty arising from such guardianship.

At common law, if a child had no guardian, or where the action was between the minor and his guardian, or where there was a conflict between the interests of the minor and those of his guardian, a curator ad litem had to be appointed to assist him (Erasmus and Van Loggerenberg Jones & Buckle: The Civil Practice of the Magistrates’ Courts in South Africa 9th ed, vol 2 6–44).

We submit that since the coming into operation of the Guardianship Act on 1 March 1994, where a child had more than one guardian and the proceedings were between the minor and one of the guardians, or where there was a conflict of interest between the minor and one of the guardians, the minor had to be assisted by the other guardian. It was only if a conflict of interest extended to both guardians that a curator ad litem had to be appointed for the minor. The Children’s Act does not alter this principle, which still applies.

The principle that a minor has no locus standi in iudicio to appear on his own in civil proceedings and that he requires the assistance of a guardian or a curator ad litem in court (Wolman and Others v Wolman 1963 (2) SA 452 (A) at 459A–B; Guardian National Insurance Co Ltd v van Gool NO 1992 (4) SA 61 (A) at 66F–G) remains unaltered. In the case of an infans below the age of seven years, the practice is that the guardian or curator ad litem should sue or be sued in his representative capacity (ibid).

A minor above the age of seven years may sue or be sued in his own name, ‘assisted by’ his guardian or curator ad litem (Jones & Buckle, vol 2 at 6–45 and the authorities there mentioned).

Where legal proceedings are instituted or defended in the name of the guardian or curator ad litem representing the minor, it should be made perfectly clear in the pleading that the guardian or curator is acting in a representative capacity (r 17(4)(a) of the Uniform Rules of the High Court; r 6(5)(a) and (d) of the Magistrates’ Courts Rules; January v Kilpatrick (1881) 2 EDC 18). Whichever method of citation is used, it is the minor, and not the guardian or curator ad litem, who is the party to the proceedings (Jones & Buckle, vol 2 at 6–45).

In terms of s 15 of the Children’s Act, which is entitled ‘Enforcement of rights’, anyone listed in the section has the right to approach a competent court, alleging that a right in the Bill of Rights or the Act has been infringed or threatened, and the court may grant competent relief, including a declaration of rights.

The persons listed in the section are a child who is affected by or involved in the matter to be adjudicated; anyone acting in the interest of the child or on behalf of another person who cannot act in his own name; anyone acting as a member of or in the interest of a group or class of persons; and anyone acting in the public interest. We submit that this section does not alter the general principles relating to the assistance or representation of a child involved as a party to legal proceedings, as set out above.

The citation of minors

A minor who is an infans may be cited as follows:

‘The plaintiff is Jane Doe, a major female businesswoman, residing at 789 Frere Road, East London, herein acting in her capacity as the mother and natural guardian of Tracy Doe, a minor female infant born on 23 May 2003, who resides at the same address.’

A minor who is over the age of seven years, may be cited as follows:

‘The plaintiff is Colin Ball, a minor male learner born on 6 February 1995, residing at 789 Thabo Mbeki Avenue, Polokwane, herein assisted by his father and natural guardian, James Ball, a major male businessman, who resides at the same address.’

*See also 2007 (Sept) DR 53 — Editor.

The authors are all advocates in Pretoria . Jacques Malan BCom LLB (UP) is a former lecturer at the University of Pretoria and an attorney, Danie van Loggerenberg SC BIur LLB (PU for CHE) LLD (UPE) is a former professor of law at the University of Port Elizabeth , while Leon Dicker BIur (UPE) LLB (Unisa) is a former magistrate and lecturer at the Justice College .

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