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3188 | non-electoral | 2007 | THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 379/06
In the matter between:
ALTHEA LA DON DE GREE First Appellant
DJANGO ANTOINE DE GREE
Second Appellant
and
DAVID WILLIAM WEBB
First Respondent
CAROLINE WEBB
Second Respondent
ROODEPOORT CHILD AND FAMILY WELFARE
SOCIETY
Third Respondent
CENTRE FOR CHILD LAW
Amicus Curiae
CORAM: HEHER, PONNAN JJA AND HANCKE, SNYDERS AND THERON AJJA
DATE OF HEARING:
9 MAY 2007
DATE OF DELIVERY:
1 JUNE 2007
Summary: Family Law – Child – Inter-country adoption – Application for sole custody and guardianship –
Best interests of the minor child to be removed from the country in terms of an adoption effected in the
children’s court pursuant to the provisions of the Child Care Act 74 of 1983. Principle of subsidiarity not
satisfied.
Neutral citation: This case may be cited as De Gree v Webb [2007] SCA 87 (RSA).
THERON AJA/
Introduction
[1] Mr and Mrs De Gree (the appellants) instituted proceedings in the
Johannesburg High Court for an order that sole custody and guardianship of the
minor child, Ruth Joy Webb (Ruth), be awarded to them. The appellants also
sought ancillary relief to the effect that Ruth be declared to have been abandoned,
that the order by the children’s court placing her in the foster care of Mr and Mrs
Webb (the first and second respondents) be discharged and that the appellants be
authorised to leave South Africa with Ruth with a view to adopting her in the
United States of America. The High Court (Goldblatt J) dismissed the application.
It is against this order that the appellants appeal, with the leave of the High Court.
Factual background
[2] Ruth was found abandoned a few days after her birth, head-first in a bucket,
under a tree in a veld in the Roodepoort area on 14 November 2004. She was taken
to the premises of the Roodepoort Child and Family Welfare Society (the third
respondent) and on 16 November 2004 the third respondent applied for and was
granted an order by the Commissioner of Child Welfare (‘the Commissioner’) for
Ruth to be placed in the care of the first and second respondents. The first and
second respondents, American citizens, now resident in South Africa, have
established and administer ‘Baby Haven’, a home for abandoned babies, in
Gauteng. Ruth has been in their care since 17 November 2004, and in terms of an
order by the Commissioner granted on 11 January 2005, they were appointed her
foster parents. To date, neither Ruth’s parents nor family have been traced.
[3] During 2005, the appellants, also American citizens, visited the first and
second respondents, with whom they shared a long-standing friendship, in South
Africa. It was then that the appellants met Ruth. They became extremely fond of
her and took steps towards adopting her. To that end, they thereafter met with Ms
Deborah Wybrow, their South African attorney, and Ms Karen Law, their
American attorney, to discuss their desire to adopt Ruth. The appellants’ suitability
as adoptive parents is not in dispute. It is apparent from the evidence that they are
fit and proper persons to adopt and that they are possessed of sufficient means to
adequately maintain and educate Ruth. As stated by Goldblatt J they are ‘caring
and decent persons who for purely altruistic purposes’ wish to adopt Ruth.
Issue
[4] It is trite that the high court, as upper guardian of all minors, has inherent
jurisdiction to grant a custody and guardianship order in respect of a minor child. It
is common cause that the children’s court has sole jurisdiction to grant an adoption
order. The grant of the order sought by the appellants would result in the sanction,
by this court, of an alternative route of an inter-country adoption, under the guise of
a custody and guardianship application. In my view, the issue is whether it is in
Ruth’s best interests to grant the order sought or to require that an application for
her adoption be made in the children’s court.
Proceedings in the High Court
[5] All three respondents supported the appellants’ application. Goldblatt J was
concerned about the unusual order sought and appointed an amicus curiae to assist
the court on, inter alia, South Africa’s obligations in terms of the Hague
Convention on the Protection of Children and Co-operation in Respect of Inter-
country Adoption 1993 (‘the Hague Convention’) and developments in South
Africa regarding inter-country adoption since the Constitutional Court decision in
Minister of Welfare and Population Development v Fitzpatrick.1
[6] The amicus curiae considered it necessary to obtain affidavits from persons
familiar with the policy and practice of inter-country adoption and in response filed
heads of argument together with affidavits deposed to by Ms Pamela Wilson, a
1 2000 (3) SA 422 (CC); 2000 (7) BCLR 713 (CC). In Fitzpatrick the Constitutional Court declared s 18(4) of the
Child Care Act 74 of 1983, which expressly prohibited adoption of South African children by non-South Africans,
unconstitutional. No inter-country adoption had taken place prior to this decision.
registered social worker in the employ of the Johannesburg Child Welfare Society
and Dr Maria Mabetoa, the Chief Director: Children, Youth and Family in the
National Department of Social Welfare (‘the Department’). Wilson states that she
has been part of the adoption team at Johannesburg Child Welfare for the past 23
years and has been involved in inter-country adoption since 2001. According to
Wilson, the adoption team has, since June 2001, placed 98 children in inter-country
adoptions, three of which were to the United States of America. They have
finalised adoptions, in the children’s court, to Hague Convention countries as well
as countries which are not signatories to the Convention.
[7] Dr Mabetoa explained that one of the principles underpinning the
Department’s inter-country adoption policy is that a child should be adopted within
South Africa and inter-country adoption should only be considered as an alternative
when a satisfactory solution cannot be found within South Africa. Dr Mabetoa
gave the following overview of the current inter-country adoption policy:
‘A profile on every child that cannot be placed locally, including the efforts undertaken to place
the child, must be submitted to the Department …. Only after the Department has agreed in
writing, [can an] inter-country adoption … be considered. The Department … reports relevant
cases to the national missing person register of the South African Police Service to ensure that a
child considered for an inter-country adoption is not a missing child. The inter-country adoptions
are done via the Children’s Court and according to provisions prescribed in Chapter 4 of the
current Act. The rules as prescribed in the [Hague] Convention are followed as [the] Central
Authorities in [both] the countries agree to the adoption.’
[8] The judge a quo found that it was not for the high court to decide what is in
Ruth’s best interests – that should be done by the children’s court in accordance
with the provisions of the Child Care Act 74 of 1983 (‘the Child Care Act’). He
stated that the high court should not be placed in the position of having to fulfill the
functions of a Commissioner who is better trained and more experienced in these
matters than high court judges. The learned judge considered that he was bound by
the dicta in Fitzpatrick that the children’s courts ‘are the sole authority empowered
to grant orders of adoption’. Central to the court’s finding, is the following passage
by Goldstone J in Fitzpatrick:
‘[In terms of the Act] the children’s courts … are charged with overseeing the well-being of
children, examining the qualifications of applicants for adoption and granting adoption orders.
The provisions of the Act creating children’s courts and establishing overall guidelines advancing
the welfare of the child offer a coherent policy of child and family welfare. If appropriately and
conscientiously applied by children’s courts the main provisions of the Act would meet the most
serious of the concerns of the Minister and the amicus curiae. [The Minister and the amicus
curiae were concerned that if inter-country adoption was to be allowed with
immediate effect, three specific problems could result: (a) the inability of the
Department to facilitate thorough background investigations of non-citizens; (b)
insufficient legislative protection against child trafficking; and (c) inadequate
provision to give effect to the principle of subsidiarity.] The provisions of section 24 of
the Act are designed to deter the practice of child trafficking, making the exchange of
consideration in an adoption a criminal offence. Until the safeguards and standards envisaged by
the Minister are introduced, children’s courts are able to prevent the feared abuses in the cases of
citizens and non-citizens alike.’2
Adoption in South Africa
[9] The Act which governs adoption in South Africa is the Child Care Act. The
Act establishes children’s courts, presided over by Commissioners (magistrates and
assistant magistrates), which are empowered to deal with adoptions. In terms of
this legislation, adoption falls under the exclusive jurisdiction of the children’s
court.3 Section 18(1)(b) provides that no adoption order may be made before the
consideration of a prescribed report from a social worker. In considering an
adoption application the children’s court must take into account the religious and
cultural background of the child as well as that of the prospective parents.4 In terms
of section 18(4) a children’s court may not grant an adoption order unless it is
2 Para 31.
3 Section 18(1)(a)reads:
‘The adoption of a child shall be effected by an order of the children’s court of the district in which the child
concerned resides.’
4 Section 18(3) read with s 40.
satisfied that: (a) the applicant(s) are qualified to adopt in terms of s 17 and possess
adequate means to maintain and educate the child; (b) the applicant(s) are of good
repute and fit and proper persons to be entrusted with the custody of the child; (c)
the adoption will serve the interests and be conducive to the welfare of the child;
(d) the necessary consent to the adoption, where applicable, has been given or if the
child is in foster care, the foster parent has indicated in writing that he or she does
not wish to adopt the child.
[10] It was only after the decision in Fitzpatrick that it became necessary to
provide a legal framework, consistent with international law, to adequately regulate
inter-country adoption. This has led to the promulgation of the Children’s Act 38 of
2005 (‘the Children’s Act’). It is anticipated that this Act will come into operation
during 2008. Although the Children’s Act is not yet in operation, it is relevant as a
statement of government’s policy approach to inter-country adoption. When the
Children’s Act comes into operation, the Guardianship Act 192 of 1993 will be
repealed and applications for guardianship will be governed by s 24 of the
Children’s Act which provides that such applications may be made to the high
court. However, s 25 limits the application of s 24 to South African citizens and
provides that a guardianship application by non-South African citizens must be
regarded as an inter-country adoption. Section 261 regulates the position regarding
inter-country adoption. In terms of this section a foreigner resident in a Hague
Convention country who wishes to adopt a South African child must first apply to
the central authority of that country, which authority is tasked with submitting a
report to the South African central authority. The Act appoints the Director-
General of the Department as the central authority5 and no inter-country adoption
may take place without the Director-General’s approval. The Director-General is
obliged to maintain a register for the purposes of keeping a record of adoptable
children and of fit and proper adoptive parents.6 If the central authorities of both
5 Section 257(1).
6 Section 232(1).
countries agree, then the application is processed by the children’s court. In terms
of s 273 no person may process or facilitate an inter-country adoption otherwise
than in terms of the Children’s Act.
International Legal Framework for Inter-country Adoption
[11] South Africa acceded to the Hague Convention on 21 August 2003. One of
the objectives of the Hague Convention is to establish safeguards to ensure that
inter-country adoption takes place in the best interests of the child and with respect
for the child’s fundamental rights as recognised in international law.7 However, in
terms of s 231 of the Constitution, an international treaty shall not have effect until
enacted into domestic legislation. The Children’s Act provides for the enactment of
the Hague Convention and will bring the latter into operation when the Act itself
becomes operational. Despite the fact that the Hague Convention has not yet been
enacted into domestic legislation, its provisions cannot be disregarded. The
fundamental principles which underlie the Hague Convention are drawn from the
United Nations Convention on the Rights of the Child (‘the UNCRC’), particularly
Article 21, which South Africa has ratified.
[12] South Africa ratified the UNCRC in 1995 and the African Charter on the
Rights and Welfare of the Child (‘the African Charter’) in 2000. Article 21 of the
UNCRC provides important protections for children.8 In accordance with the
7The objects of the Hague Convention as encapsulated in Article 1 are:
‘(a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with
respect for his or her fundamental rights as recognized in international law;
(b) to establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected
and thereby prevent the abduction, the sale of, or traffic in children;
(c) to secure the recognition in Contracting States of adoptions made in accordance with the Convention.’
8 Article 21 provides as follows:
‘States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child
shall be the paramount consideration and they shall:
(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance
with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is
permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the
principle of subsidiarity, Article 21 provides that inter-country adoption may be
considered as an alternative means of child-care, if the child cannot suitably be
cared for in terms of domestic measures. Subsidiarity requires that priority be given
to placing the child with his or her family of origin and that domestic measures be
given preference over inter-country adoption.9 Despite the fact that the principle of
subsidiarity has not been expressly provided for in domestic legislation, our courts
are obliged, in terms of s 39(1)(b) of the Constitution to take this into account
when assessing the best interests of the child, as it is a well established principle of
international law.10 The principle of subsidiarity is also enshrined in Article 24(b)
of the African Charter, but in somewhat stronger terms; inter-country adoption
should only be considered as ‘the last resort’.11
Adoption vis-a-vis Custody and Guardianship12
[13] Counsel for the appellants contended that the same legal consequences flow
from a custody and guardianship order as an adoption. For the reasons that follow,
I do not agree with that contention. An order of adoption is permanent and the
status of the child in relation to his or her adoptive parents is clear. An adopted
persons concerned have given their informed consent to the adoption on the basis of such counselling as may be
necessary;
(b) Recognize that inter-country adoption may be considered as an alternative means of child's care, if the child
cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country
of origin;
(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those
existing in the case of national adoption;
(d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper
financial gain for those involved in it;
(e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral
arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in
another country is carried out by competent authorities or organs.’
9Fact Sheet No 36 on Intercountry Adoptions, International Social Service General Secretariat, International
Reference Centre for the Rights of Children Deprived of their Family, available http://www.iss-ssi.org/
Resource_Centre/New_Documents/documents/FactSheetNo36ENG.pdf.
10 Minister for Welfare and Population Development v Fitzpatrick 2000 (3) SA 422 (CC); 2000 (7) BCLR 713 (CC)
para 32 fn 33. Goldstone J, in para 32 states that one of the concerns ‘that underlie the principle of subsidiarity are
met by the requirement in s 40 of the [Child Care] Act that courts are to take into consideration the religious and
cultural background of the child, on the one hand, and the adoptive parents, on the other’. In terms of s 39(1)(b) a
court is obliged, when interpreting the Bill of Rights, to consider international law.
11 Article 24 reads, in relevant part:
‘States Parties which recognize the system of adoption shall ensure that the best interest of the child shall be the
paramount consideration and they shall:
(a) …
(b) recognize that inter-country adoption in those States who have ratified or adhered to the International Convention
on the Rights of the Child or this Charter, may, as the last resort, be considered as an alternative means of a child’s
care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in
the child’s country of origin’.
12 See generally Van Heerden, Cockrell, Keightley, Boberg’s Law of Persons and the Family 2 Ed (1999) 450-452.
child is deemed in law to be the legitimate child of the adoptive parents.13 If a child
is taken out of the country on the basis of a custody and guardianship order there is
a risk that the adoption order in the receiving country may not be granted. There
arises a mutual claim for support between the child and the adoptive parents, which
also extends to adoptive relations such as grandparents and siblings. Adoption
terminates all rights and obligations existing between the child and the pre-adoptive
parents and their relatives. A child who has been placed in the custody and under
the guardianship of ‘parents’ will not inherit unless specifically named in their will.
On the other hand, adoption creates rights of intestate succession between the child
and the adoptive parents, which rights extend to the adoptive relatives.14 The
child’s biological parents can withdraw consent to the adoption and apply for
rescission within the time frames set by the Child Care Act. The biological parents
of the child are completely excluded from the adoption process if that process
happens in another country. It is acknowledged that there is no apparent prejudice
on this score as Ruth has been abandoned. It is however not inconceivable that
Ruth’s biological parents may, in the future, make enquiries as to her whereabouts.
But the best interests standard applied by the high court is not without limitation.
Although, in this matter, the best interests of Ruth are of paramount importance,
this court is enjoined, in terms of s 28(2) of the Constitution, which creates a right
for all the country’s children, to consider the rights
of children generally and the effect which an order of this court may have on other
children.15 When an adoption is concluded in South Africa, it must by law be
registered with the registrar of adoptions, which allows, inter alia, for the child to
trace the details surrounding his or her adoption at a later stage.
[14] An important feature of the case is this. According to the immigration
information furnished by the appellants’ American attorney, Ruth’s status in
13 Section 29(2) of the Children’s Act 33 of 1960.
14 Sections 1(4)(e) and (5) of the Intestate Succession Act 81 of 1987.
15 Section 28(2) reads: ‘A child’s best interests are of paramount importance in every matter concerning the child.’
See also Sonderup v Tondelli 2001 (1) SA 1171 (CC); 2001 (2) BCLR 152 (CC) paras 28-32.
America will be more secure if she was to be adopted by the appellants as opposed
to being taken out of South Africa in terms of a custody and guardianship order.
Law states that if the appellants were to be granted an adoption order by a South
African court, Ruth would, upon entry into the United States of America,
automatically be granted American citizenship. In the event that Ruth enters the
Unites States under a custody and guardianship order, she will receive lawful
permanent residence status which is not a secure status. Law explains:
‘The lawful permanent resident must renew their status periodically. If the lawful permanent
resident violates U.S. law, for example, by not renewing his or her status, he or she can be
deported. Accordingly, if the status of Ruth is not renewed, she could be deported, and at the
renewal stage, the authorities would enquire into the adoption and progress being made to
regulate her stay in the United States of America. For this reason, it is critical for lawful
permanent residents to secure citizenship as soon as possible.’16
The following evidence of the appellants’ local attorney, confirms Ruth’s
precarious status under a custody and guardianship order:
‘I have also, since the inception of this particular matter, been advised by the United States
Consulate that it may have difficulty with an order of sole guardianship and sole custody,
notwithstanding that similarly worded orders have been the basis upon which visas have been
granted in all of our previous applications.’
Wybrow goes on to request that the court, in the exercise of its jurisdiction as upper
guardian, ‘grant an adoption’ of Ruth in favour of the appellants. This is, in my
view, an acceptance that Ruth will enjoy safeguards under an adoption order,
which are not available to her in terms of a custody and guardianship order.
[15] The problem with granting a custody and guardianship order with a view to
concluding an adoption in a foreign country is that such an approach circumvents
local adoption law and falls short of the standards and safeguards provided by such
law. This is contrary to the principles of the UNCRC and the African Charter
16 Law states that she and the appellants’ local attorney had previously worked together in connection with the
adoption of two South African orphans by an American family. The family were awarded an order for custody and
guardianship of the children in December 2004. It is noted that almost a year later, when Law deposed to her
affidavit, the adoption of the children had not yet been finalised.
which requires that the child concerned enjoys standards and safeguards equivalent
to those existing in the case of national adoption.17 These standards and safeguards
should apply both to procedures before an adoption order is made and to the status
of the child following the grant of such an order.18 South Africans wishing to adopt
a child would be required to make application to the children’s court. There is no
good reason why an alternate route, via the high court, should be available to
foreigners, particularly when there are policies and procedures in place, in the
children’s court, to deal with inter-country adoption.
Best interests of the child
[16] It was submitted, on behalf of the appellants, that the high court, as upper
guardian of all minors, has inherent jurisdiction to grant an order for custody and
guardianship upon a consideration of the best interests of a minor child and it is in
fact ideally suited to consider the permanent placement of minor children.19 It was
further contended that the inherent jurisdiction of the high court allows for
flexibility in the determination of the best interests of the child, in accordance with
the provisions of s 28(1)(b) of the Constitution,20 whereas the children’s court, as a
creature of statute, is bound by the statutory limitations imposed upon it. In this
regard reliance was placed on the statement by Goldstone J in Fitzpatrick that ‘it is
necessary that the [best interests] standard should be flexible as individual
circumstances will determine which factors secure the best interests of a particular
child’.21 Counsel for the appellants also argued that if this court were to refuse the
application it would be placing the interests of the child secondary to departmental
policies and procedures.
17 Articles 21(c) and 24(c) of the UNCRC and the African Charter, respectively.
18 Professor Dr. William Duncan, Fundamental Principles of the Hague Convention of 29 May 1993 on Protection of
Children and Co-operation in Respect of Intercountry Adoption, a paper delivered at The Hague Forum for Judicial
Expertise, in The Hague, Netherlands, 3-6 September 2006.
19 The concept ‘permanent placement’ is not defined in South Africa law. The only form of placement (with non-
biological parents) that may be described as ‘permanent’ is adoption. At the hearing counsel for the appellants
accepted that permanent placement, in the context of this matter, meant adoption.
20 Section 28(1)(b) provides that every child has the right ‘to family care or parental care, or to appropriate
alternative care when removed from the family environment’.
21 Para 18.
[17] This reasoning is flawed and I am unable to agree with it. Both the amicus
curiae and the Department cautioned against the grant of the order sought on the
basis that it would sanction an inter-country adoption, without the necessary
safeguards and protections intended for the benefit of the child, in accordance with
domestic and international law. The fundamental principle which underlies the
relevant international treaties is the best interests of the child. Article 3 (1) of the
UNCRC gives content to the best interests requirement as follows:
‘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.’22
Furthermore, Article 21 of the UNCRC requires States to ensure that the best
interests of the child is the paramount consideration in adoption.23 Similarly, the
best interests standard is foundational to the objects of the Hague Convention.24
These international instruments seek to protect the best interests of the child by
ensuring, inter alia, that inter-country adoptions take place in the best interests of
the child, that they are conducted in a responsible and protective manner with the
aim of eliminating the various abuses which have been associated with inter-
country adoptions. I am of the view that it is in the best interests of children
generally that inter-country adoptions be effected in accordance with the principles
of these international instruments.
[18] The appellants sought, in reply, to make out a case that they had approached
the high court for relief on the basis that they were precluded from approaching the
children’s court by reason of the Department’s policy not to countenance inter-
country adoptions to the United States. In support thereof, the appellants rely on a
statement made by an official from the Department, Ms Rose Msini, that:
‘[The Department’s] concern lies with the need of our children to be placed inside the country as
far as possible before considering inter-country adoptions, and to ensure that all avenues to
22 The African Charter contains a similar provision, Article 4(1), which reads:
‘In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the
primary consideration.’
23 Above fn 8.
24 Artice 1. Above fn 7.
recruit adoptive parents locally are explored. Since we do not have any working agreement with
the United States of America, we do not think it will be possible to look at the possibility of inter-
country adoption.’(Emphasis added.)
The appellants also rely on the statement made to their attorney by Ms Raath, a
Commissioner attached to the Johannesburg children's court, on 24 January 2006
(which date is after the launch of this application) that ‘a policy decision had been
taken not to allow inter-country adoptions to the United States of America’. As I
have already mentioned that is a new case sought to be made out in reply.
[19] The first appellant, in her founding affidavit, states that they approached the
high court because they were advised by their legal representatives that pending the
finalisation of the Children’s Act and the consequent enactment of the Hague
Convention, there were no:
‘regulations in place to govern intercountry adoptions. I have therefore been advised by my
attorneys that, pending the finalization of the abovementioned legislation and the formal
enactment of the Hague Convention, permanent placements are best dealt with by the High Court
in its capacity as upper guardian of all minor children. We have been advised that, as upper
guardian of all minors, the High Court has, with due regard to the best interests of the minor
child, inherent jurisdiction to grant an application for full custody and full guardianship. We have
furthermore been advised, in light of the circumstances of this matter, that the appropriate forum
would be the High Court, hence this application to the High Court.’
In light of the evidence of Wilson and Dr Mabetoa setting out the current inter-
country adoption policy, it is clear that the appellants were incorrectly advised that
there were no ‘regulations’ in place to govern such adoptions. It is apparent from
this passage that the appellants, on advice, took a conscious decision to approach
the high court on the basis of the inherent jurisdiction of that court. It is implied
from the passage that the appellants were of the view that the high court was better
suited than the children’s court, to properly deal with this matter. This sits ill with
their later assertions that having regard to the attitude of the Department, they
believed that they could not approach the children’s court.
[20] I am not persuaded, on the evidence, that the Department has adopted a
policy not to approve inter-country adoptions to the United States. According to
Wilson, she has, since 2001, been personally involved in three inter-country
adoptions involving American applicants. Dr Mabetoa also confirms that inter-
country adoptions to non-contracting states can take place provided they occur
within the appropriate framework and with the necessary safeguards. In any event,
even if it is accepted, for purposes of this argument, that the Department’s policy
was not to allow inter-country adoption to the United States, that does not, in my
view, justify the appellants approaching the high court for relief and in the process
circumventing the adoption procedure provided for in the Child Care Act. The
appellants’ first port of call should have been the children’s court, and if necessary,
they could, thereafter, have taken the matter on review or appeal to the high court.
[21] Wybrow stated in her affidavit:
‘The position of the Applicants is that the question of legal costs has become a matter of great
concern to them and it may prove impossible to secure representation for any future
appearances.’ (My emphasis.)
By no stretch of the imagination can that be construed as suggesting that the
appellants’ financial resources were at an end. Wybrow has continued to act for the
appellants and senior counsel appeared on their behalf in this court. It would appear
that since the deposition of Wybrow’s affidavit on 27 February 2006, the appellants
have secured funding for ‘future appearances’. Even if their financial resources
have since been depleted, that would be an entirely irrelevant consideration in the
determination of the appeal. Litigation in the high court is undoubtedly expensive.
Appeals to this court, more so. The absence of financial resources can hardly tip
the scales in favour of a particular litigant. In any event, an adoption application in
the children’s court is inexpensive and can be instituted without the use of legal
practitioners and private adoption agencies. In fact, the adoption mechanism in the
children’s court is aimed at cost-effectiveness and minimising the role of legal
practitioners and private adoption agencies.
Principle of Subsidiarity
[22] To ensure compliance with the principle of subsidiarity as expressed in
Article 21 of the UNCRC it must be established that the child cannot be cared for
through foster care or adoption or other suitable care in his or her country of
origin.25 The appellants allege that during the time Ruth has been in the care of the
first and second respondents, no other potential parents had expressed an interest in
having Ruth placed with them. It is also alleged that the third respondent has been
unable to secure
any prospective parents for Ruth. In support of this allegation the appellants rely on
the statement in Hanekom’s report that:
‘On 23rd of August 2005, the social worker [in the employ of the third respondent who was
responsible for supervising the care of Ruth by the first and second respondents] informed me
that the baby will possibly go overseas, and she agreed to it if it is in the child’s best interest.’
(Emphasis added.)
That hearsay statement by Hanekom contemplates as early as August 2005 when
Ruth was but nine months old, the possibility of her adoption by foreigners.
Moreover, it represents the high water mark of the appellants’ case insofar as
satisfaction of the principle of subsidiarity is concerned. That, on any reckoning,
falls far short of what would ordinarily be required of a prospective adoptive parent
in a matter of this kind. And for this reason alone, if nothing else, the appellants
had to fail. Ruth’s voice has not been heard in this application. The third
respondent, who ought to have represented Ruth’s best interests, has failed to do
so. It must be borne in mind that the amicus curiae was appointed to assist the
court below on, inter alia, developments in South Africa regarding inter-country
adoption, and not to represent Ruth.
25Minister for Welfare and Population Development v Fitzpatrick 2000 (3) SA 422 (CC); 2000 (7) BCLR 713 (CC)
para 23 fn 13.
[23] It was common cause that the responsibility to have investigated whether
there was suitable care available for Ruth in South Africa rested with the third
respondent. The third respondent has not indicated what steps, if any, it took to
secure suitable local care for Ruth. It would appear that the third respondent had
aligned itself with the appellants and had failed to approach the matter on the basis
that adoption should be child-suited and not parent-suited. This is precisely one of
the practical objectives of the Hague Convention – to ensure that the inter-country
adoption process becomes ‘less that of finding a suitable child for a [family] and
more that of finding a suitable family for a child’.26 This case is a classic
illustration of the need and importance for an ‘independent’ social worker as
envisaged by the Department in its current inter-country adoption framework; a
social worker who does not deal directly with the prospective adoptive parents.
[24] Counsel for the appellants contended that there was nothing more that the
appellants could have done in order to satisfy the court that no suitable care was
available locally for Ruth. I am not persuaded that that is so. It is trite that it is the
appellants, as the parties seeking relief, who must satisfy the court that they are
entitled to the relief sought. The Constitutional Court in Fitzpatrick cautioned that,
until the new child care legislation is in operation and infrastructure and
international agreements are put in place, prospective adoptive applicants:
‘will have a greater burden in meeting the requirements of the [Child Care] Act than they will
have thereafter. They will have to rely on their own efforts and resources in placing all relevant
information before the children’s court.’27 (Emphasis added.)
In my view the appellants have not discharged the ‘burden’ resting on them. The
evidence of Hanekom, based on the hearsay evidence of a social worker clearly
weighted in favour of the appellants who had omitted to properly investigate the
possibility of suitable local care, is, in my view, insufficient to establish that the
principle of subsidiarity has been complied with as to justify the removal of Ruth to
26 Professor Dr. Duncan, Fundamental Principles of the Hague Convention of 29 May 1993 on Protection of
Children and Co-operation in Respect of Intercountry Adoption, supra.
27 2000 (3) SA 422 (CC); 2000 (7) BCLR 713 (CC) para 34.
the United States. The children’s court, in considering an application for adoption,
is obliged to refuse such application where all the relevant information has not been
placed before the court.28 It is thus, in my view, simply wrong to approach the
matter on the basis of a prima facie case. To talk of a rebuttal of a prima facie case,
is, with respect, to ignore the provisions of s 18(4) of the Child Care Act.29
[25] There is evidence from Wilson as to the availability of prospective local
adoptive parents, including black South Africans, eager to adopt female children
from birth to five years of age. It has been suggested that the Department has
admitted that there are no procedures to identify prospective adoptive parents.
There is no evidence to support such a suggestion. It would appear that there is a
flaw in the present system of matching children available for adoption with
prospective parents. Prospective parents who are waiting to adopt a child can be
‘bypassed’ by a system that allows some prospective parents to approach the high
court and in this way ‘jump the queue’. The bond that has been established between
the appellants and Ruth should not come into the reckoning at all. That is precisely
the kind of practice that the Hague Convention eschews. The development of a
bond with a child by prospective adoptive parents, without following the
appropriate channels and getting onto the appropriate waiting lists results in the
kind of queue-jumping witnessed here. The Children’s Act will address this
problem as it will establish a central register both of children available for adoption
and prospective parents. There is not a shred of evidence that anyone made
enquiries about the availability of prospective adoptive parents for Ruth. As I have
already indicated, the third respondent, whose function it was to do, aligned
themselves with this application from the outset.
Application to lead further evidence
28 Section 18 of the Child Care Act. Minister of Welfare and Population Development v Fitzpatrick 2000 (3) SA 422
(CC); 2000 (7) BCLR 713 (CC) para 33.
29 Above para 9.
[26] The evidence sought to be introduced is to the effect that Ruth has remained
in the care of the first and second respondents since the application was heard by
the High Court and that no person has shown an interest in adopting or fostering
her. In my judgment, that evidence does not take the matter any further. The
appellants launched this application on 14 October 2005. The High Court handed
down judgment on 21 April 2006 and shortly thereafter, on 12 May 2006, the
appellants applied for leave to appeal to this court, which leave was granted on 14
June 2006. In these circumstances it would have been foolhardy to attempt to
secure other prospective adoptive parents for Ruth while the matter was sub judice.
The matter has in fact been sub judice for almost two years.
Conclusion
[27] It may indeed be in Ruth’s best interests to be adopted by the appellants. But
the process the appellants have chosen is fraught with difficulties. In my view it is
not in Ruth’s best interests that she be removed from the country in terms of a
custody and guardianship order, without the protection and safeguards of an
adoption first effected in the children’s court. This court, as well as the high court,
should not sanction an adoption procedure which is in conflict with international
treaties which South Africa has ratified and which are designed to safeguard the
best interests of the child. The appellants are not without a remedy. It is still open
to them to approach the children’s court for relief – a remedy which is by far more
cost effective than the route they have chosen.
[28] For these reasons, the appeal is dismissed.
Snyders AJA concurred.
L V Theron
Acting Judge of Appeal
HEHER JA:
[29] I have read the judgment of Theron AJA. I respectfully disagree with her
conclusion. In my assessment the best interests of the child Ruth were
overwhelmingly favoured by the grant of the application.
Introduction
[30] Goldblatt J said in the court a quo:
‘Whilst prima facie it appears that if the child is in due course adopted by the applicants she will
have a secure and nurturing home and accordingly it was strenuously argued by the applicants
that I
in my capacity as upper guardian of the child should grant the orders in that this would be in the
best interest of the child, as will appear more fully hereunder I am of the view that it is not for
this court to decide what is in the best interest of the child and that this should be done in
accordance with the procedures set out in terms of the Child Care Act 74 of 1983.’
[31] In my view that manifests a fundamentally flawed approach. Section 28 of
the Constitution (to which I shall return later) provides:
‘(2)
A child’s best interests are of paramount importance in every matter concerning the
child.’
[32] The first task of the learned judge was to determine whether the High Court
possessed jurisdiction to try the merits of the application. If it did, he was bound to
consider and evaluate all relevant facts placed before him with a view to deciding
the issue which was of paramount importance.
[33] That process did not exclude the possibility that the best interests of the child
might lie in the ultimate decision of another court which for appropriate reasons of
law and fact was competent to decide the matter. But that is a conclusion which
could only be arrived at as a result of balancing all the relevant aspects affecting
the child’s interest, including the public interest and the interest of the applicants in
so far as such matters bore on the interest of the child. Similarly, while the interests
of children generally are important they are only so to the extent that the child in
this case will benefit or be adversely affected by the furtherance or limitation of
those interests because this matter concerns the child Ruth and no other. The
peculiar facts of this case cannot be determinative or even persuasive of the rights
of any other child whose interests are not the same.
[34] The learned judge’s approach limited him to legal and policy considerations.
The result was, as I shall attempt to demonstrate, an unsatisfactory triumph of form
over substance.
Jurisdiction
[35] The applicants sought an order of sole custody and sole guardianship. That
was not a disguised attempt at circumventing the adoption laws. They made it clear
that they intended to apply for an adoption order in the United States in due course
and they presented their case with a view to showing that the ultimate objective
was attainable in fact and law.
[36] The high court, as the upper guardian of minors, is empowered and under a
duty to enquire into all matters concerning the interest of children. It may make
orders for custody and guardianship and does so on a daily basis. The children’s
court, a creature of statue, is expressly empowered to make orders for adoption.
One may infer from the detail in which the exercise of its powers are circumscribed
in the Child Care Act that the legislature intended it to exercise the power of
adoption to the exclusion of a high court. However no powers to make orders for
sole custody or guardianship are expressly included in its enabling legislation nor, I
think, are to be implied. A high court and the children’s court are equally open to
persons who are not South African citizens.
[37] In the circumstances the High Court was, as to jurisdiction, competent to
hear the application. I should note that such competence does not appear to have
been disputed in the court a quo and was conceded in this Court.
The relevance of adoption procedures to the application
[38] I wish to make it clear at the outset that a determination of what is in the best
interests of a child who is the subject of an application like the present one required
the High Court to ensure that the fullest protection is afforded to the child. Any
order which it might ultimately make must needs have been preceded by an
investigation which satisfied the court that no reasonable inquiry remained
unanswered. The applicants sought an order which would enable them to control
the future of the child beyond the protection of South African law. These
considerations persuade me that, although the applicants did not seek an order for
adoption, the case which they presented should nevertheless have been measured
against the standards which they would have been obliged to meet if they had done
so. If the application falls materially short of those standards the High Court would
have failed in its duty to the child if it granted the application and the appeal cannot
succeed. The balance of this judgment is premised on the need to test the
application accordingly.
Factors relevant to the operation of s 28(2) in the application
i)
Factors personal to the child
At the time of the application Ruth Joy Webb was almost eighteen months old. She
has now reached two and a half years. Her parents are unknown and cannot be
traced. One cannot exclude the possibility that at some future time the mother may
come forward and establish her kinship but that seems unlikely. Ruth is of African
origin. She has, since her first week in this world, been cared for by foster parents,
the first and second respondents, who are American citizens living in South Africa.
They are reaching the stage where, because of multiplying responsibilities, they
will be obliged to place her in an orphanage or similar institution unless she is first
adopted. The evidence establishes that as a child grows towards the age of five the
prospects of adoption diminish. Until the launching of the application no
prospective adoptive parent had shown an interest in Ruth. At the hearing of the
appeal counsel for the applicants moved to have additional evidence placed before
the court by affidavit of the foster father, David Webb, deposed to on 5 December
2006, the essential allegations of which are the following:
‘3.
Ruth was placed in the care of the Second Respondent and me on 17 November 2004. To
date, no one other than the First and Second Appellants has ever expressed any interest
whatsoever in making Ruth a permanent part of his or her life.
4.
In particular, no one other than the First and Second Appellants has visited Ruth whilst
she has been in our care with a view to adopting her, fostering her in our place and stead,
or hosting her for weekends or for any part of each week.
5.
In contrast, the First and Second Appellants have been in frequent telephonic and email
communication with the Second Respondent and myself, with a view to enquiring about
the progress being made by Ruth and to keep themselves appraised of her development
and well-being.
6.
The Second Appellant even returned to Johannesburg in July 2006, accompanied by his
eldest son, Django De Gree Junior, to spend time with Ruth and introduce her to his son.
7.
Although several of the other children in the care of Second Respondent and myself have
been adopted during the time Ruth has been living with us, Ruth remains in the foster
care of the Second Respondent and myself as she has done since 17 November 2004.
8.
The Second Respondent and I had agreed to foster Ruth temporarily until a permanent
family could be found for her. We are not seeking to adopt Ruth, nor is it our intention to
have her live with us permanently.
9.
Ruth is now over two years of age. In my opinion, she will languish, in an institution if a
permanent family is not found for her: she requires parental care, even if that is in another
country.’
[39] The admission of the affidavit was not seriously opposed. Its content is
clearly relevant and material. The best interests of a minor child are dynamic not
static. In my opinion the affidavit contains information essential to a just and
sufficient determination of those interests and should be admitted. Counsel for the
amicus curiae, the Centre for Child Law, submitted that it must carry little weight
since the application and the pending appeal would probably have discouraged
interest in the child. That is an inference which in my view does not reach a level
of probability. In any event the future prospects of the child must be judged by
what has happened and what is probable in the future and not by what may have
happened in different circumstances.
[40] What is clear is that Ruth has a need for and a right to family or parental care
(s 28(1)(b) of the Constitution). Her prospects of satisfying either the need or the
right are bleak and diminishing as the months pass.
ii)
Factors personal to the applicants
[41] I consider it unnecessary to enter upon detail in this regard. The applicants’
case is entirely unquestioned. Their own evidence of a stable, happy and secure
family life in reasonably affluent circumstances and an attractive environment is
supported by affidavits from persons who know them and by the report of the
Virginian adoption agency, Autumn Adoptions Inc, which carried out a
comprehensive investigation. Every personal circumstance seems to favour the
applicants as future adoptive parents for the child. One is bound to conclude that
the future which they offer her is a glowing one which would be difficult to match
at a level of material, emotional and spiritual concerns even in the Republic of
South Africa.
iii)
Matters of public interest
[42] Goldblatt J quoted the views of the amicus curiae in extenso with approval
and a minimum of comment. I think it necessary to examine them in closer detail.
South Africa’s international treaty obligations
[43] The amicus submitted that the grant of the order would be in conflict with or
at least circumvent such obligations.
[44] Relevant to this aspect are ss 39(1), 231(2) and (4) and 233 of the
Constitution. The correct approach is that formulated by the Constitutional Court in
S v Makwanyane 1995 (3) SA 391 (CC) at 413-4:
‘[35] Customary international law and the ratification and accession to international agreements
is dealt with in s 231 of the Constitution, which sets the requirements for such law to be binding
within South Africa. In the context of s 35(1), public international law would include non-
binding as well as binding law. They may both be used under the section as tools of
interpretation. International agreements and customary international law accordingly provide a
framework within which chap 3 can be evaluated and understood, and for that purpose, decisions
of tribunals dealing with comparable instruments, such as the United Nations Committee on
Human Rights, the Inter-American Commission on Human Rights, the Inter-American Court of
Human Rights, the European Commission on Human Rights, and the European Court of Human
Rights and, in appropriate cases, reports of specialized agencies such as the International Labour
Organisation, may provide guidance as to the correct interpretation of particular provisions of
chap 3.’
[45] South Africa has adopted the Convention on the Rights of the Child. Art 3
affirms the best interests of the child as ‘a primary consideration’ in all actions
concerning children whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies.
[46] Art 21 provides:
‘States Parties that recognize and/or permit the system of adoption shall ensure that the best
interests of the child shall be the paramount consideration and they shall:
(a)
Ensure that the adoption of a child is authorized only by competent authorities who
determine, in accordance with applicable law and procedures and on the basis of all pertinent and
reliable information, that the adoption is permissible in view of the child’s status concerning
parents, relatives and legal guardians and that, if required, the persons concerned have given their
informed consent to the adoption on the basis of such counselling as may be necessary;
(b)
Recognize that inter-country adoption may be considered as an alternative means of
child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any
suitable manner be cared for in the child’s country of origin;
(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards
equivalent to those existing in the case of national adoption;
(d)
Take all appropriate measures to ensure that, in inter-country adoption, the placement
does not result in improper financial gain for those involved in it;
(e)
Promote, where appropriate, the objectives of the present article by concluding bilateral
or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that
the placement of the child in another country is carried out by competent authorities or organs.
[47] South Africa has adopted but not yet made part of its municipal law the
Hague Convention on Protection of Children and Co-operation in Respect of
Intercountry Adoption 1993 (‘the Hague Convention’). In this regard The
Children’s Act 38 of 2005 has been passed by Parliament. The Act proposes inter
alia to provide for inter-country adoptions and to give effect to the Hague
Convention. The legislation has been some time in the preparation but even so
there is no immediate prospect of it being brought into force. I am prepared to
assume that sooner rather than later a date will be fixed for its operation.
[48] The relevant provisions of the Hague Convention are the following:
‘Article 4
An adoption within the scope of the Convention shall take place only if the competent authorities
of the State of origin-
a)
have established that the child is adoptable;
b)
have determined, after possibilities for placement of the child within the State of origin
have been given due consideration, that an intercountry adoption is in the child’s best interests;
c)
have ensured that
(1)
the persons, institutions and authorities whose consent is necessary for adoption, have
been counselled as may be necessary and duly informed of the effects of their consent, in
particular whether or not an adoption will result in the termination of the legal relationship
between the child and his or her family of origin,
(2)
such persons, institutions and authorities have given their consent freely, in the required
legal form, and expressed or evidenced in writing,
(3)
the consents have not been induced by payment or compensation of any kind and have
not been withdrawn, and
(4)
the consent of the mother, where required, has been given only after the birth of the child;
and
(d)
have ensured, having regard to the age and degree of maturity of the child, that
(1)
he or she has been counselled and duly informed of the effects of the adoption and of his
or her consent to the adoption, where such consent is required.
(2)
consideration has been given to the child’s wishes and opinions,
(3)
the child’s consent to the adoption, where such consent is required, has been given freely,
in the required legal form, and expressed or evidenced in writing, and
(4)
such consent has not been induced by payment or compensation of any kind.’
‘Article 5
An adoption within the scope of the Convention shall take place only if the competent authorities
of the receiving State-
a)
have determined that the prospective adoptive parents are eligible and suited to adopt;
b)
have ensured that the prospective adoptive parents have been counselled as may be
necessary; and
c)
have determined that the child is or will be authorized to enter and reside permanently in
that State.’
Every principle of the Hague Convention which is relevant to this application (and
its spirit) has been satisfied by the evidence presented to the court a quo in so far as
that was practicable.
[49] In terms of Art 6 of the Hague Convention a contracting state is to designate
a Central Authority to discharge the duties which are imposed by the Convention
upon such authorities. Chapter IV of the Convention sets up the procedural
requirements for inter-country adoptions. The procedure is initiated in the state of
the proposed adoptive parents and carried on between the respective Central
Authorities who are responsible for the prescribed investigations and reports. Art
21 ensures protection for a child after transfer to the receiving state and before
adoption. Art 29 places limits on
contact between the prospective adoptive parents and the child’s parents or any
other person who has care of the child prior to satisfaction of certain requirements
of the Convention. Art 30 provides for preservation of information concerning the
child’s origin, parents and medical history.
[50] Art 4(b) quoted above recognizes and gives effect to the principle of
subsidiarity. Goldstone J in Minister of Welfare and Population Development v
Fitzpatrick 2000 (3) SA 422 (CC) (at para 23 fn 13) described subsidiarity as ‘the
principle that intercountry adoption should be considered strictly as an alternative to the
placement of a child with adoptive parents who reside in the child’s country of birth’. The
principle is also referred to in paras 27, 32 of that judgment. To the last-mentioned
paragraph Goldstone J added the following footnote, (33 at p 433):
‘Although no express provision is made for the principle of subsidiarity in our law, courts would
nevertheless be obliged to take the principle into account when assessing the “best interests of the
child”, as it is enshrined in international law, and specifically art 21 (b) of the Constitution that
“(w)hen interpreting the Bill of Rights, a court, tribunal or forum . . . must consider international
law’.
Of particular importance in this context are the remarks of the learned justice in
para 32 of the judgment:
‘The concerns that underlie the principle of subsidiarity are met by the requirement in s 40 of the
Act [the Child Care Act 74 of 1983] that courts are to take into consideration the religious and
cultural background of the child, on the one hand, and the adoptive parents, on the other.’
As I shall attempt to show (in paragraphs 62 to 68 below) all the underlying
concerns to which the learned justice referred have indeed been answered by the
applicants.
[51] In my view any recognition of the ‘Interim Central Authority’ or the
children’s court as an implementer of inter-country adoptions in relation to the
present application would be inappropriate. The law must be applied as it is, not as
it may become, however probable the prospect. There are of course no regulations
in place to regulate inter-country adoptions because there is, at the present time, no
statute which authorizes the content or making of such regulations. The furthest
this Court should go is to give appropriate weight to the content of the prospective
law and the views expressed by the representatives of the Department and the
Society and to recognize the eventual objectives that they are striving to achieve,
all in the context of determining what is in the best interest of the child Ruth Webb.
Both the applicants and the child are entitled to the full benefit of the law as it is.
An attempt to superimpose the inchoate legislation on the application would be
unfair to the child and the applicants, against her best interest (in so far as it puts a
damper on an application by prospective adoptive parents in or from the United
States) and would subject consideration of the substance of the application to
unnecessary delay without the prospect of achieving a concomitant benefit for the
child. It is not without relevance that the applicants have indicated, while the
proceedings in the High Court were under way, that their financial ability to pursue
further litigation in South Africa was in serious doubt.30 Nor do I regard it as fair to
the child that her future should depend upon the determination of wholly
unnecessary legal battles to determine the form of an application which is to place
her in the applicants’ care.
[52] Before I consider the relationship between the case made by the applicants
and the legal considerations, it is necessary to refer to the interaction between the
Hague Convention and the content of the Children’s Act. It was common cause in
the application and on appeal that the Department of Social Welfare was in the
process of setting up the structures which the Convention contemplates on an
interim basis pending the operation of the legislation. It was however also clear that
these structures are incomplete and that, in the particular case of proposed
adoptions by citizens of the United States, not yet adequate to serve the demands of
the Convention. Section 24(1) of the Children’s Act preserves sole jurisdiction in
granting orders of guardianship to a high court. However s 25 proposes that an
application for guardianship by a non-South African citizen is to be regarded as an
inter-country adoption for the purposes of the Hague Convention and Chapter 16
(which legislates for such adoptions). In terms of the proposals in that Chapter
adoptions between countries are to be initiated between the Central Authorities of
Hague Convention countries or between the competent authority of a non-
convention country and the Central Authority of the Republic. The intention
30 In para 3 of the affidavit of their attorney Ms Wybrow dated 27 February 2006.
appears to be that the Central Authority will accredit child protection organizations
in the Republic to act on its behalf in investigating and reporting on any such
application for adoption. To further this purpose such an accredited organization
may enter into working agreements with accredited adoption agencies in other
countries.
[53] The implementation of the procedure cannot be divorced from the creation of
adequate structures to cope with inter-country adoptions. The reality at the time
that this application was launched (as it still is today) is that-
1)
both South Africa and the United States have not passed laws which
incorporate the Convention in their domestic law;
2)
neither country has created a Central Authority which is empowered by law
to exercise the functions which the Convention contemplates (and for which, in
South Africa, the Children’s Act will provide the legal framework);
3)
‘accredited’ South African agencies, such as the Johannesburg Child Welfare
Society, have established no working agreements with adoption agencies in the
United States.
[54] I disagree strongly with Theron AJA that the grant of the application would
‘sanction an adoption procedure which is in conflict with international treaties
which South Africa has ratified’.
[55] The substance of the Hague Convention is the achieving of the child’s best
interest through the formal structures which are to be provided by the adopting
states. In the overall conclusion which I have reached I am satisfied by the totality
of the evidence presented by the applicants that in this case, the goal has been
reached despite the structural shortcomings (which should not be laid at the door of
the applicants or be allowed to prejudice the child).
The policy of the Department and the agency
[56] The amicus informed us that the Johannesburg Child Welfare Society (‘the
Society’) is accredited by the Department as a body authorized to exercise powers
on its behalf under the Child Care Act and in its capacity as Interim Central
Authority. Ms Pamela Wilson deposed to an affidavit on its behalf in opposition to
the application. She said:
’15.
As an agency, we have an adoption policy in place where it is stated that we will only
negotiate with approved and recognized adoption agencies in overseas countries. . .’
[57] Dr Maria Mabetoa, the Chief Director: Children, Youth and Families in the
Department, deposed as follows:
‘Only organizations/private social workers that have registered a speciality in adoptions, who
have a working agreement in place with a foreign accredited organization, can do intercountry
adoptions. Organizations and social workers do therefore not work randomly with any country,
but with a country they know well and where procedures were spelt out in the working
agreement. . . Most of the working agreements currently in place are with other Hague countries
that have also ratified the convention. The only exception is a working agreement between
Johannesburg Child Welfare and Botswana. This agreement was supported by the Department of
Social Development for the following reason: Although the culture of the population in
Botswana differs from the population in South Africa, it is not as radical as other countries. . .
This Department is of the opinion that when working with a non-Hague country, such as the
United States of America, one must be careful with procedures and responsibilities as the
Convention does not apply and therefore the necessary safeguards do not exist.’
(The emphasis is mine.)
[58] I understand the quoted passages to say that because the Society and the
Department do not have working agreements in place with the United States an
agency such as the Society cannot negotiate adoptions involving United States
citizens, or, at best, will only do so in rare cases. In an affidavit in reply filed by the
applicants’ attorney on their behalf it was made clear that my understanding is, if
anything, a generous interpretation of a restrictive policy. Ms Wybrow deposed as
follows:
’11.
In addition and pursuant to my discussions with the Amicus on the refusal of the
Department of Social Development to allow placements to the United States of America in
particular, I forwarded to the Amicus via email on 7 December 2005, the email I had previously
submitted in the Reid matter before this Honourable Court (Case No. 05/27085), wherein the
American Applicants were advised by the Department of Social Development that they would
not be allowed to adopt South African children, (despite the provisions of Fitzpatrick).
12.
I annex hereto and marked “DLW4” a copy of the abovementioned email.
13.
I also telephoned Mrs Raath, the Commissioner of Child Welfare, Johannesburg
Children’s Court, on 24 January 2006 and was advised that a policy decision had been taken not
to allow Inter-Country adoptions to the United States of America.
14.
I advised the Amicus of this in an email dated 24 January 2006, a copy of which is
annexed hereto and marked “DLW5”.
15.
Mrs Raath suggested I telephone Mrs Marike Bloem of the “Interim Central Authority”,
which I then did on 25 January 2006. Mrs Bloem confirmed that the stance of her Department
remained as per Annexure “DLW4”, in that they would not allow adoptions to the United States
of America. I was advised by Mrs Bloem that the only exception would be if it were an “in-
family” placement. The reason given to me was that no one in South Africa had “experience” in
dealing with the United States of America.
16.
Despite receiving the Applicants’ Heads of Argument, the Memorandum of Advocate
Skinner S.C., the Memorandum from Advocate Julyan S.C., and the documentation and emails
referred to in Paragraphs 6 to 11 above, the Amicus has not seen fit to make any mention of these
facts in her submission to this Honourable Court.’
[59] The amicus has also not seen fit to seek leave to rebut any of these
averments. As they merely serve to confirm the statements of policy to which I
have referred in the affidavits of Wilson and Mabetoa I have no hesitation in
accepting them at face value. They tell me that the policy which the Department, its
agency and the Johannesburg Children’s court has adopted is not one which is
likely to support or assist a United States citizen in the adoption of a South African
child, to state the matter at its lowest. Moreover they make it clear that the
Department and the agency do not regard themselves as properly equipped to
handle such applications by reason of the lack of contact between the social welfare
agencies of the respective countries. It is, in the circumstances, hardly surprising
that the applicants followed the route of a high court application. But it is
astonishing that the main submission of the amicus (accepted by Goldblatt J) was
and is that the children’s court is the forum best-equipped to deal with the
application in the particular circumstances of this case.
[60] The amicus also submitted that if the children’s court shows itself fettered by
policy against an adoption by the applicants they would have every right to review
its decision. That may be so, but it is hardly an approach which favours the interest
of the child in obtaining an appropriate hearing as soon as reasonably practicable
and while the applicants are still willing and able to pursue the matter. I think the
applicants were well-advised in the circumstances to pursue the route which they
did.
vi)
The concerns of the amicus curiae
[61] In amplification of her submission that the children’s court is the proper and
appropriate forum the amicus referred to certain matters which, she submitted,
would better and more appropriately be investigated and decided by a children’s
court. (I do not ignore Ms Julyan’s disturbing submission on behalf of the
applicants that in the normal course of events no such investigation is carried out in
the children’s court for
reasons of lack of capacity, lack of expertise, inertia or sheer indifference. I find it
sufficient to test Ms Skelton’s submissions at face value.) Those matters are:
i)
subsidiarity;
ii)
potential exploitation for monetary or other reasons;
iii)
adequate compliance with the adoption procedures and safeguards laid down
in the Child Care Act.
[62] As to subsidiarity, the principle is one recognized in the interest of children,
in order that, wherever possible, a child shall enjoy its parental upbringing in a
culture which is familiar to him or her and comparable to that from which he or she
would have benefited as a sharer in the opportunities open to most other children in
the country of his or her birth with normal parental care. The applicants in
presenting their case made the following averments in this regard:
a)
that since birth the child has been cared for by Mr and Mrs Webb and has
been given their surname;
b)
no other potential parents have expressed an interest in having the child
placed permanently with them;
c)
the Third Respondent, the Roodepoort Child and Family Welfare Society
does not have any prospective parents for the child;
d)
the applicants are of African descent and have been interested in African
culture throughout their lives; they have done extensive research on and
study in South African history, people, culture and art.
e)
the applicant’s own children have been raised ‘with a real sense of what it
means to be an African-American’, believing that each child should be
imbued with a sense of pride as to who they are and where they come from;
f)
the applicants intend to raise Ruth ‘with an in-depth knowledge of her roots
and her history, and to travel back to South Africa with her in future so that
she can develop an intimate knowledge of her country of origin’.
[63] In her submissions to the court a quo the amicus conceded that ‘there is no
clear system relating to establishing whether there are any prospective South
African adopters . . . and it is evident that the Department of Social Development
will need to establish clear procedures in this regard’. She suggested that, in order
to comply with the subsidiarity principle, ‘substantial efforts’ to place the child in
foster care or adoption in South Africa must be made. She was not able to suggest
in argument on appeal how such efforts were to be made.
[64] In her affidavit Ms Wilson deposed that
‘6.
Johannesburg Child Welfare Society has prospective local adoptive parents on the
waiting list for female babies between the ages of birth – 5 years old. The majority of our
adoptive parents are black and most of them prefer to adopt a girl. There are certain cultural
beliefs behind the demand for girls rather than boys. There is therefore always a greater demand
for girls and the adoptive parents will wait much longer if they especially want a girl. Over the
past few years there has been an encouraging increase in the number of local black adopters
approaching the agency and we always have people on the waiting list. We also have local
applicants wishing to adopt trans-racially. It is for this reason that we usually only consider our
older black boys (from 1 year upwards) for inter-country adoption. Johannesburg Child Welfare
Society always has prospective adopters on its adoption waiting list, waiting for girls of all ages.
There is no acceptable reason why a female baby should be placed out of the country when there
is such a demand within the country.
7.
With regard to this particular case, our agency has not received any requests for a local
family for this baby.’
[65] She does not suggest that the Society, with its list of prospective adopters,
has been able to effect a single introduction between such persons and the child.
The proof of the pudding must be in the eating.
[66] As to what may be the reasonable processes after the exhaustion of which the
subsidiarity principle may be deemed to be fulfilled, Dr Mabetoa said
‘A national register of children available for adoption and prospective adoptive parents (RACAP)
will have to be established by the Department of Social Development. No child can be
considered for an inter-country adoption unless the child has been on the register for 60 days and
no fit and proper parents could be found within the country.’
[67] Three inferences arises from this: first, that the ability and means to test the
availability of prospective parents is regarded as a national responsibility; second,
the dissemination of information about the availability of a child for adoption is a
matter to be carried out through the instrumentality of a comprehensive list known
by all persons desirous of adoption to be available for perusal; third, in those
circumstances an unrewarded period of 60 days will be deemed to satisfy the
principle of subsidiarity. It is immediately apparent that such standards have no
relevance at all to the present case; in the absence of appropriate structures, they set
an impossible level of compliance for the private citizen. In my view the court must
deal with the evidence before it. The degree of interest shown in the child until now
– which is non-existent – must be regarded as the closest proof to the likelihood
that prospective parents will emerge after this case is concluded.
[68] There is a further aspect of importance in this regard. The subsidiarity
principle does not exist in a vacuum. Goldstone J, as I have earlier noted, regarded
s 40 of the Child Care Act as embodying ‘the concerns that underlie the principle
of subsidiarity’. Section 18(3) of the Act provides that in considering an application
for adoption ‘the children’s court shall have regard to the matters mentioned in
section 40’. Those matters are ‘the religious and cultural background of the child
concerned and of his parents as against that of the person in and to whose custody
he is to be placed or transferred’. But the circumstances of Ruth are not those of an
ordinary child from a broken home. She was abandoned at birth. She has no
experience of a religious or cultural background other than such as Mr and Mrs
Webb have provided for her. Their
religious and cultural background is essentially that of the applicants themselves. It
seems to me that, in the peculiar circumstances of this case, the subsidiarity
principle is very largely reduced in importance by reason of these uncontested
facts. In so far as regard should still be had to that inherent and perhaps dormant
cultural heritage which is conferred by the fact of being born in a particular
environment or background, I have already pointed out that the applicants have
undertaken to respect and promote that awareness. It seems to me, as a probability,
that the cultural alienation of Ruth, should she be taken by the applicants to the
United States and there adopted, will be little different from that of any other young
South African child who is taken by his parents to a foreign country. Such children
are notoriously adaptable, the more so while very young.
[69] The amicus highlighted four possible aspects of exploitation: the grasping
adoptive ‘parent’ who seeks to make money out of the child with no bona fide
intention to adopt or care for the child; the exploitative and conscienceless adoption
agency which will prepare reports to suit its client; the undesirability of contact
between ‘adoptive parent’ and the child before adoption other than through or
under the supervision of an independent social worker; the inability of a South
African court to oversee the continuing care of a child removed under the pretext of
an order for custody and guardianship. As to the first two possibilities the evidence
presented by the applicants should be approached with care. But, doing so, it
clearly and satisfactorily establishes the good faith of both the applicants and
Autumn Adoptions Inc. Moreover the Society and the Department to whom it was
open to make enquiries through official or private channels have not produced a
tittle of evidence which casts doubt or suspicion on either. As to the third
consideration it is no doubt desirable that the prospective parents, the reporting
social welfare worker and the child should be at arms length during the adoption
procedures both to ensure the integrity of the investigation and reports and to avoid
the potential of emotional turmoil in the child if
the application for adoption fails or is abandoned. In the present instance the
applicants employed a South African private social worker of 30 years experience
in the field of adoptions, Ms Hanekom, to prepare a report for submission to the
High Court. Neither Ms Hanekom nor her report was the subject of any criticism
by the professional bodies involved in the matter. In the circumstances it seems to
me that the criticism of conflict with good social work practice inherent in that
employment is sufficiently met by the acceptable manner in which she in fact
carried out her mandate.
[70] Lastly, it is true that the court which grants an order in the terms sought by
the applicant places itself beyond the possibility of continuing to oversee the
welfare of the child. But that, of course, applies to any child lawfully removed from
South Africa at the instance of a custodian. The more important question is the
integrity and reliability of the custodian and that is on the papers convincingly
answered in favour of the applicants. In the present instance the case for removal is
visibly strengthened by an affidavit produced by the applicants from Ms Karen
Law, an attorney practicing in the State of Virginia of more than 20 years
appropriate experience who practices in family law. She speaks to ‘a foreign
child’s immigration status upon entry to the United States and to the oversight
provided by the United States Citizenship and Immigration Services (‘USCIS’) and
the Commonwealth of Virginia from entry until the child’s adoption is finalised’.
[71] It is unnecessary to enter upon the detail. The following passages from her
affidavit are highly relevant (and indicative of her thoroughness):
’17.
After submitting the Immigration documentation, I continued to monitor the progress of
the De Gree application to USCIS. The De Gree family received final approval to adopt two
orphans from South Africa on the twentienth (20) September 2005. A copy of their approval
notice is attached. This approval indicates that the family has satisfied USCIS that they will
provide a good home for up to two orphans from South Africa.’
and
’28.
Prior to the finalization of the adoption, Ruth Joy’s welfare would be overseen by the
Virginia Court system, the Commissioner of Social Services, and Autumn Adoptions, Inc. If
there were any mistreatment, Social Services would have jurisdiction to immediately address that
in Juvenile and Domestic Relations Court under Section 63.2-1517 of the Virginia Code, 1950
Edition, as amended. In addition, Autumn Adoptions, Inc. is required by Virginia Code Section
63.2-1509, 1950 Edition, as amended, to report any suspicion of child abuse to Social Services.
Virginia laws to protect the best interest of the child are very strict with regard to abuse and
neglect, and the Juvenile and Domestic Relations Court has the authority to remove a child from
home temporarily or permanently where abuse or neglect is suspected.
’29.
In addition, for six months after Ruth Joy entered the U.S., the family would be in a
probationary period, pursuant to Virginia Code, Section 63.2-1210, 1950 Edition, as amended.
During this period, Virginia law requires that the family be visited by a licensed child-placing
agency three times with at least ninety days between the first and last visit. Autumn Adoption
Agency, Inc. has made a commitment to conduct the three required post-placement visits (See
attached). The purpose of the visits is to ensure the well-being of the child in the adoptive family.
30.
At the end of the probationary period, the Agency is directed to furnish a full report to the
Commissioner of Social Services for review under Virginia Code, Section 63.2-1212, 1950
Edition, as amended. If the Commissioner is concerned about the welfare of the child, he has the
authority to refuse to approve the finalization of the adoption.
31.
When the six-month probationary period has ended, the adoptive family can file a Petition
in Circuit Court to finalize the adoption, pursuant to Virginia Code, ection 63.2-1227-1228, 1950
Edition, as amended. The Petition is then forwarded to the Agency that conducted the post-
placement visits during the probationary period. The Agency has ninety days to write a report of
Investigation, which is then forwarded to the Commissioner of Social Services for review. If the
Commissioner is satisfied with the report and the Circuit Court that has jurisdiction over the
prospective adoptive family is satisfied that all other legal requirements have been met, the Court
will issue a Final Order of Adoption. Typically, it takes about ten (10) months from the time the
family returns home with the orphan until the family is awarded the Final Order of Adoption.
32.
I am experienced in handling adoption finalizations and the De Grees have included
enough funds in my retainer to cover that process, which I will begin when the required six-
month probationary period has elapsed.
33.
Once the family has been awarded a Final Order of Adoption, the child automatically
becomes a U.S. citizen under the Child Citizenship Act of 2000, because the final requirement
for citizenship is satisfied. However, to obtain proof of citizenship, the family files an application
for a Certificate of Citizenship with USCIS. The De Grees understand the necessity of applying
for a Certificate of Citizenship and I am experienced in assisting families with these types of
applications.
34.
Because South Africa is a country with whom the United States has diplomatic relations,
Virginia gives full faith and credit to the order of the South African court awarding sole custody
and sole guardianship to the De Grees. This means that the De Grees would be considered the
legal guardian of Ruth Joy in Virginia with the same rights and privileges as if a Virginia court
had awarded guardianship. There is no separate procedure in Virginia law to mirror the
guardianship order of the South African high court, because the Virginia courts recognize the
authority of the South African High Court order.’
In the report of Ms Hanekom, confirmed on oath, she stated
‘It must be said that the United States of America has one of the best adoption After-care
Systems in the world. Everything possible will be done to make sure that the children’s best
interests are served. By law there are mandatory follow-ups done on the family for a period of
two years and a multitude of services are rendered for adopted children and their families.’
[72] No aspect of the evidence of Ms Law or Ms Hanekom was placed in dispute.
The possibility of exploitation through lack of supervision is in the circumstances
excluded on any reasonable basis and is entirely speculative. I am satisfied that the
practices, laws and procedures of the State of Virginia are designed for the best
interests of children generally and that Ruth will not be prejudiced by committing
her care to the trusteeship of the authorities of that State. The difference in status to
which Theron AJA refers in para 14 is of no consequence given what Ms Law says
in paras 29 to 33 of her affidavit and the assurance that the applicants will
expeditiously pursue the route of an adoption under Virginian law.
vii)
The procedures and requirements of the Child Care Act
[73] The amicus placed reliance on the judgment in Minister of Social Welfare
and Development v Fitzpatrick. She submitted that the inference to be drawn from
it was that the children’s court alone through its oversight of the operation of the
Act was the appropriate forum to bring an adoption application or one which in
substance sought to adopt a child. That judgment certainly held that the procedures
of the Act applied, were properly and appropriately sufficient to protect a child in
cases of adoption. It did not, because it was not necessary to do so, decide that
applications for sole custody and guardianship at the instance of a foreign citizen
must be brought in the form of an adoption application to a children’s court. I am
prepared to accept that in the exercise of its duty as upper guardian in applications
like the present a proper exercise of its protective function requires a high court to
consider whether the substance of the requirements laid down by the Act for an
adoption has been met and I shall do so. In doing so it is also proper to
acknowledge the bona fide intentions of the applicants to submit the final
determination of the adoption issue to a competent and well-equipped adjudication
in a foreign jurisdiction. I do not accept the submission that the children’s court
possesses by virtue of training, skills, experience or the facilities available to it for
investigation any advantages over a high court. Of course there are exceptions in
both courts and on both sides of the line but there is no acceptable basis for such a
generalized proposition.
[74] Section 18(4) of the Child Care Act prohibits the making of an order for
adoption unless the court is satisfied as to certain matters. Specifically, on the facts
of this case-
(a)
both applicants are qualified to adopt the child as contemplated by s 17(a) of
the Act, and are possessed of adequate means to maintain and educate the
child;
(b)
both applicants are of good repute and fit and proper to be entrusted with the
custody of the child;
(c)
the proposed order and the eventual adoption in the United States will serve
the interests and conduce to the welfare of the child;
(d)
thee are no known parents to give consent;
(e)
the foster parents have stated in writing that they do not wish to adopt the
child;
(f)
the requirements of s 40 have for the reasons discussed at length earlier in
this judgment, been satisfied.
[75] The applicants placed before the High Court at least as much as (and
according to counsel for the applicants, far more than) would have been required of
them in a children’s court application. This is not, in my view, a case where any
necessary safeguards or protections, whether arising from local or international
law, have been left unexplored or can reasonably be strengthened by an application
to the children’s court.
[76] It was submitted that the granting of this order would be the thin end of the
wedge, enabling foreigners to take advantage of a loophole not open to South
African citizens. I do not regard such an order as anything of the sort. Any South
African who is able to make out a case for sole custody and guardianship is at
liberty to approach a high court for such an order and thereafter to remove the child
from the country without the need to disclose that intention at the time of applying
for the order. Nor will he necessarily find his application scrutinized according to
the standards which apply to an adoption. I would also point out that the present
application presents a total and unique picture which justifies the order which is
finally made. Whether any other applicants can satisfy the onus on them will
depend entirely on the facts peculiar to that application. In another case the facts
may justify the conclusion that the best interests of the child require that he or she
be formally adopted in South Africa before being removed from the country. The
weight of evidence lies heavily against it in present instance.
Conclusion
[77] Having attempted to identify the arguments for and against the granting of
the order it becomes necessary to decide whether the benefits and advantages to the
child in this case outweigh those on the opposite side of the scale to the extent that
the level of the child’s best interest is reached in the overall evaluation. I have no
doubt that that level is comfortably exceeded. The substantial value to Ruth of a
stable, happy and potentially prosperous future with the applicants in the United
States and the enormity of the deprivation and prejudice which she will suffer if no
adoptive parent should come forward far outweighs the sum of formal compliance
with the Child Care Act, the speculative possibility of remotely comparable parents
coming to her rescue in South Africa, the preservation of her cultural and religious
identity, the maintenance of a rigid and unyielding policy on intercountry
adoptions, and the avoidance of the possibility of an undesirable precedent. At the
same I remain wholly unpersuaded that an inflexible insistence on strict
compliance with every procedural aspect laid down for a formal adoption
according to the supervision of a children’s court would have strengthened or
weakened the applicants’ case in any material respect.
[78] For all these reasons I am left in no doubt that the appeal should succeed.
___________________
J A HEHER
JUDGE OF APPEAL
PONNAN JA
[79] I have had the benefit of reading the judgments of Heher JA and Theron AJA
and for the reasons that follow I am in agreement with the conclusion reached by
my learned Sister.
[80] The success of a litigant's claim is often dependent upon the path chosen to
press that claim. A claim should not be decided in splendid isolation but rather
within the context of the form chosen to stake the claim. Not infrequently an
asserted claim, with at first blush an aura of invincibility, falters because the chosen
legal vehicle proves inappropriate for the challenges of the legal journey.
[81] The real issue in this matter, to my mind, relates to the procedure adopted by
the appellants and the form chosen to press their claim. For it seems to me that the
form chosen carries with it its own failure. What the appellants ultimately sought
was in effect an inter-country adoption. How they hoped to achieve that was
through the guise of some other application.
[82] It has been suggested that it was permissible for the high court to be
approached in its capacity as the upper guardian of the minor child for the relief
sought. There can be no question that the high court has jurisdiction to grant a sole
custody and guardianship order. But that was not all that it was being asked to do
in this case. That order was no more than a precursor to the authority solicited for
the removal of the child to the United States where an adoption order was to be
sought from the appropriate court. The High Court was therefore being asked in
effect to grant an adoption order to foreign nationals. That it could not do.
[83] South African nationals seeking an adoption order are obliged to approach
the children's court which has the sole authority and power to grant orders of
adoption. I
can conceive of no basis on which foreign nationals should escape that stricture.
The burden for South African citizens desirous of adopting is quite rightly an
onerous one. The Child Care Act offers what the Constitutional Court (Fitzpatrick
para 31) describes as a coherent policy of child and family welfare at the heart of
which is the children's court. It is the first port of call for citizens seeking to adopt
and should likewise be such for non-citizens as well. In terms of s 18(1)(b) of the
Act no adoption may be made before consideration of a prescribed report from a
social worker. Needless to add the social worker must be an independent social
worker with no ties - particularly financial - to the prospective adoptive parents.
The children's courts are charged with examining the qualifications of the
prospective adoptive parents and granting adoption orders. Importantly, a
children's court may not grant an adoption order unless it is satisfied that the
requirements contained in s 18(4) of the Act have been met.
[84] Article 21(c) of the UNCRC states that State Parties are required to ensure
that a child concerned by an inter-country adoption enjoys safeguards and
standards equivalent to those existing in the case of national adoptions. In my
view, those safeguards and standards clearly apply to both the procedures
employed before an order is made and the status of the child following upon the
making of an order.
[85] Where a child's existing family no longer functions to meet her needs, article
20 of the UNCRC requires the state to provide special protection and assistance to
such a child and 'to ensure alternative care' for her. That alternative care may
include adoption. Article 21 requires those states which recognise adoption to
ensure that 'the best interests of the child shall be the paramount consideration'.
Article 21(b) of the UNCRC articulates the principle that inter-country adoption, as
an alternative form of child care, may only be considered if there is no suitable
alternative for the child in her country of origin. This principle finds expression in
article 4(b) of the Hague Convention which provides that the competent authorities
of the state of origin must 'have determined after possibilities for placement of the
child within the state of origin have been given due consideration, that an inter-
country adoption is in the child's best interests'. The African Charter is even more
emphatic. It provides that inter-country adoption may, as a last resort, be
considered as an alternative means of child care if the child cannot be placed in a
foster or an adoptive family or cannot in any suitable manner be cared for in the
child’s country of origin.
[86] These international instruments promise a more child-centred approach to
inter-country adoptions. This approach seeks to eliminate various abuses that have
hitherto been associated with the movement of children from one country to
another, such as profiteering, bribery, falsification of birth documents, coercion of
biological parents, the intervention of unqualified or paid intermediaries and the
sale and abduction of children.
[87] One of the most important objectives of the Hague Convention is to secure
the automatic recognition in all contracting states of adoptions made in accordance
with the Convention and thus avoid the legal limbo of non-recognition which has in
the past plagued many children who have been the subject of inter-country
adoptions.
[88] The detailed legal, administrative and procedural provisions of the Hague
Convention informed the thinking of the Constitutional Court in Fitzpatrick. That
at a stage when this country had neither ratified the Convention nor indicated an
intent to do so. Since then not only have we ratified the Convention, but in
addition we have gone some way to incorporating it into domestic law.
[89] During 1997 the South African Law Commission was tasked by the
Ministers for Welfare and Population Development (now Social Development) and
Justice to investigate legislative reform proposals in the Child Law sphere. A
project committee
was appointed and an issue paper was published for general information and
comment in May 1998. The issue paper was followed by an extensive process of
consultation with all the relevant stake-holders including a large array of NGO’s
working in this sphere. The ultimate consequence of all of this was a final three
volume report and draft Children's Bill which was released in 2002 by the
Commission at the conclusion of that process.
[90] The Children's Bill was introduced into Parliament during 2003. The Bill
covered areas of both national and provincial constitutional competence. The
composite legislative enactment produced by the Commission thus came to be split
into what became known as the s 75 Bill and the s 76 Bill (a reference to the
constitutional provisions which outline parliamentary procedure for national and
provincial Bills respectively). A decision was taken to deal with the s 75 Bill first.
It is envisaged that the sections eliminated from the composite Bill will be enacted
as an amendment to the principal Act, perhaps during 2008. The s 75 Bill which
evolved into the Children's Act No 38 of 2005 was ultimately passed by Parliament
on 14 December 2005 and signed into law by the President on 8 June 2006. Once
the Act comes into operation, the provisions of the Hague Convention which are
contained in Chapter 16 will be incorporated into domestic law. That does not
mean, however, that the provisions of the Convention can be safely ignored until
then. The Act itself represents the culmination of a protracted legislative process.
Notwithstanding the Convention not yet having been incorporated into domestic
law, the Department of Social Development has put in place interim arrangements
to give effect to this country's international convention obligations.
[91] Both the passage of the Act and the implementation of the interim
arrangements are a firm and considered statement of governmental policy in regard
to inter-country adoptions. Section 273 of the Children's Act is unequivocal in
stating that no person may process or facilitate an inter-country adoption otherwise
than in terms of Chapter 16.
[92] The policy framework underpinning the Children's Act is the clearest signal
from the South African state that it intends to honour its international legal
obligations in regard to the protection of children who are to be the subject of inter-
country adoption. Courts should accordingly not sanction a procedure that flies in
the face of this country's treaty obligations. Furthermore, in choosing between two
possible procedural options a court should, it seems to me, rather plump for the one
that is compatible with this country’s international legal obligations than the one
that is not.
[93] Section 24(1) of the Children's Act provides:
'Any person having an interest in the care, well-being and development of a child may apply to
the High Court for an order granting guardianship of the child to the applicant.'
That, however, is qualified by s 25 which reads:
'When application is made in terms of section 24 by a non-South African citizen for guardianship
of a child, the application must be regarded as an inter-country adoption for the purposes of the
Hague Convention on Inter-country Adoption and Chapter 16 of this Act.'
The procedure adopted by the appellants will thus be expressly proscribed once the
Act comes into force. Until that occurrence, which is just a matter of time, this
Court should be slow to lend its imprimatur to a procedure that ignores the
internationally recognised safeguards and standards to be found in the Hague
Convention. For a court to permit what is sought in this case, would, I dare say, be
akin to embarking upon a law-making function inconsistent with what has already
been ordained by the Legislature. This course of conduct would obviously be
constitutionally inappropriate.
[94] The essential premise of the international instruments is the paramountcy of
the criterion of the best interests of the child. Paradoxically we are being asked to
jettison all of the procedural and structural safeguards that seek to achieve that end
in the context of inter-country adoptions ostensibly because it is in the best interests
of this particular child to do so. As interesting as that esoteric debate may be, it is
perhaps unnecessary to embark upon it for the truth is that the route chosen by the
appellants precluded a proper ventilation of that issue.
[95] The safeguards essential to the enquiry, such as independent experts and an
inquisitorial procedure of the nature envisaged in the Child Care Act during
adoption proceedings, are absent in the procedure chosen by the appellants.
Moreover, it is quite inexplicable that in an application of the kind encountered
here a curator ad litem had not been appointed to represent the interests of the
minor child. Once underway there may well have been a divergence of interests
between the minor child and all the other parties, not anticipated at the inception of
the application. To my mind a curator ad litem was thus indispensable. Although
cited as respondents the foster parents made common cause with the appellants and
the Roodepoort Child and Family Welfare Society adopted what can only be
described as a supine attitude. In that, in my view, the Roodepoort Child and
Family Welfare Society failed the child. The role of the amicus curiae was defined
by its brief from Goldblatt J. Despite Ms Skelton's commendable industry for
which we are indebted, she was obviously constrained by a rather limited remit.
The absence of a curator, as also other independent evidence, is a telling
deficiency. It denied the most important role player - the minor child - a voice in
those proceedings.
[96] An evaluation of the best interests of this child must of necessity entail an
enquiry into both her long-term and short-term best interests and the interplay
between the two. Undoubtedly a difficulty in applying the standard is the
impossibility of predicting whether certain decisions will in the long term benefit a
particular child. It is so that the child has been languishing in foster care since birth.
It may well be that little if any interest has been shown in her by prospective
adoptive parents locally. Why that is so does not emerge satisfactorily on the
papers. The immediate allure of her being placed with the appellants is seductively
appealing. But to succumb to that allure is, with respect, to distort the enquiry and
to subvert the long-term interests of the child to the immediate gratification that a
placement with the appellants provides. The instinctive joy that is felt upon
learning that a family has been secured for a foundling and the natural reticence to
deny such a child the rich opportunities that a placement of that kind will provide,
is understandable. Those temptations must however be tempered by the important
consideration that an inter-country adoption is an alternative means of child care
foundational to which is the principle of subsidiarity.
[97] The evidence on behalf of the appellants that the child's prospects of being
placed with adoptive parents who reside in this country are slim, is rather
perfunctory. With that must be contrasted the evidence solicited by the amicus
which is far more cogent. That exercise impels me to the conclusion that the
evidence, such as it is, falls far short of establishing that there is an absence of
prospective parents in this country for the child, much less that an inter-country
adoption would be in her best interests.
[98] I pause to record that the evidential and procedural lacunae to which I have
alluded would either not have arisen or could have been remedied by the
inquisitorial procedure available had the route of the children's court been
followed. On that score I hasten to add that nothing in this judgment should be
construed as a criticism of the appellants. They appear to be philanthropic people
who obviously acted on advice in launching the high court application. The
appellants are not remediless. They are still free to approach the children's court,
an avenue that, in any event, was open to them after their lack of success in the
High Court instead of their pursuing this appeal. Had the appropriate forum been
approached with the proper application and had all the requirements been met, an
order for adoption would have issued in this country prior to the departure of the
appellants and the child to the United States. Instead the High Court was asked in
consequence of the grant of the order sought to sanction the removal of the child to
the United States in the expectation that an adoption order would be granted there.
Until the order is granted there — and there is no guarantee that it will be — the
child will be in a state of legal limbo. The security which comes with an adoption
order is what the Hague Convention requires and the best interests of the child
demands. To fashion relief that is less than that accorded to her by the Convention
is, to my mind, the very antithesis of the best interests of the minor child.
_____________________
V M PONNAN
JUDGE OF APPEAL
HANCKE AJA:
[99] The legal process has been fiddling for more than 18 months while the
child’s prospects are consumed by the delay. The majority of the Court adopts a
non-possumus attitude. They seem to be content that the fires be stoked for some
while longer. For what? Unless the setting aside of the court order is likely to result
in a real benefit to the child, her best interests are merely being held to ransom for
the sake of legal niceties. If that is so I want no part of it. An examination of
whether such a benefit is likely to flow from the rejection of this appeal results in
what follows hereunder.
[100] In the circumstances of this case an adoption in South Africa will confer no
material advantage on the child, which she could not obtain by adoption in the
State of Virginia.
[101] The applicants produced evidence sufficient to satisfy the requirements of
the law of adoption in South Africa and the Hague Convention on Inter-Country
Adoption. There is no advantage to the child in having them rehash the evidence in
the children’s court.
[102] The applicants cannot reasonably be expected to make a better case in the
children’s court than they have done here.
[103] There is no real prospect that the applicants will proceed with the adoption,
if they are obliged to pursue it in the children’s court. They have not said that they
are willing to do so. Their resources are at an end. They must be disillusioned by
the South African legal process. The application for adoption will clearly be a
gamble given (i) that this Court would have found that the case presented to it was
insufficient; (ii) the seeming reluctance of the Department, the Society and the
children’s court itself to grapple with adoptions by residents of the United States.31
[104] If the application for adoption is not pursued or is pursued and is
unsuccessful the possibility of another good Samaritan appearing to rescue the
31 In this regard it is important to note what Dr Mabetoa, Chief Director: Children Youth and Family said in respect
of the procedures that will have to be implemented once the bill comes into operation, namely:
‘When an application is made for guardianship by a non-South African citizen for guardianship of the child, the
application must be regarded an intercountry adoption for the purpose of the Convention.’
child is purely speculative. If the possibility of adoption by South Africans is a
reasonable one I would have expected the Department, the society or the amicus
curiae to have produced evidence to the High Court. On the contrary the
Department has admitted that the procedures to identify prospective adoptive
parents are not yet in place.
[105] All the aforegoing features persuade me that the best interests of the child are
served by relying on the case presented by the applicants and not by deferring a
decision on the merits.
[106] There is one further matter. The suggestion that the child was not represented
in the application or the appeal seems to me to be almost frivolous given the
involvement of the foster parents, the social worker, the Roodepoort Child Welfare
Society, the State and its accredited agency, the Society and the amicus curiae. All
are agreed that the applicants established at least prima facie that the best interests
of the child lie in the eventual adoption by them. The only issue raised in
opposition is whether that prima facie case could and would be rebutted by using
the procedures and standards of the Child Care Act, the Convention and the
Children’s Act. All these matters have been thoroughly canvassed. It is in the
highest degree unlikely that separate representation for the child would have cast
any new light on the application. Neither counsel nor the Court a quo thought that a
curator was necessary.
[107] I agree with the judgment of Heher JA. I would uphold the appeal.
___________________
S P HANCKE
ACTING
JUDGE
OF
APPEAL | THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
Friday 1 June 2007
Status:
Immediate
Please note that the media summary is intended for the benefit of
the media and does not form part of the judgment of the Supreme
Court of Appeal
De Gree v Webb
In a judgment today the Supreme Court of Appeal has dismissed
an appeal by an American couple, for an order of sole custody and
guardianship of a minor child, Ruth Joy.
Ruth was found abandoned a few days after her birth, head-first in
a bucket, under a tree in a veld in the Roodepoort area on 14
November 2004. She was taken to the premises of the Roodepoort
Child and Family Welfare Society and on 16 November 2004 the
third respondent applied for and was granted an order by the
Commissioner of Child Welfare for Ruth to be placed in the care of
the first and second respondents. The first and second
respondents, American citizens, now resident in South Africa, have
established and administer ‘Baby Haven’, a home for abandoned
babies, in Gauteng. Ruth has been in their care since 17
November 2004, and in terms of an order by the Commissioner
granted on 11 January 2005, they were appointed her foster
parents. To date, neither Ruth’s parents nor family have been
traced.
During 2005, the appellants, also American citizens, visited the
first and second respondents, with whom they shared a long-
standing friendship, in South Africa. It was then that the appellants
met Ruth. They became extremely fond of her and decided to
adopt. To this end they met with their attorneys and this application
was launched. The appellants’ suitability as adoptive parents is not
in dispute. It is apparent from the evidence that they are fit and
proper persons to adopt and that they are possessed of sufficient
means to adequately maintain and educate Ruth and they are
caring and decent persons who for purely altruistic purposes wish
to adopt Ruth.
The SCA, in a judgment by Theron AJA in which Snyders AJA
concurred, (Ponnan JA, in a separate judgment, agreed with the
conclusion of Theron AJA) held that while it may indeed be in
Ruth’s best interests to be adopted by the appellants, the process
the appellants have chosen is fraught with difficulties. It was held
that it is not in Ruth’s best interests that she be removed from the
country in terms of a custody and guardianship order, without the
protection and safeguards of an adoption first effected in the
children’s court. It was stated that the courts should not sanction
an adoption procedure which is in conflict with international treaties
which South Africa has ratified and which are designed to
safeguard the best interests of the child.
--ends-- |
1768 | non-electoral | 2011 | THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 710/2008
In the matter between:
LOUIS JOHANNES JACOBUS GROBBELAAR First Appellant
DANIEL JOHANNES MONK HEYNS
Second Appellant
PETRUS CROUS WELGEMOED
Third Appellant
and
SHOPRITE CHECKERS LIMITED
Respondent
Neutral citation:
Grobbelaar v Shoprite Checkers (710/2008) [2011] ZASCA 11
(11 March 2011)
Coram:
BRAND, NUGENT, LEWIS, MALAN and MAJIEDT JJA
Heard:
15 February 2011
Delivered:
11 March 2011
Summary:
Agreement in restraint of trade – breach of – sale of business as
going concern – cession of rights – claim for damages - causation
_____________________________________________________________________
ORDER
On appeal from:
Western Cape High Court (Cape Town) (Van der Westhuizen AJ
sitting as court of first instance):
The appeal is dismissed with costs, including the costs of two counsel.
_____________________________________________________________________
JUDGMENT
MALAN JA (BRAND, NUGENT, LEWIS, and MAJIEDT JJA concurring)
[1] This is an appeal by the defendants in the court a quo, against the judgment and
order of Van der Westhuizen JA in the Cape High Court, declaring the defendants liable
to the respondent, the plaintiff in the court below, for damages caused by their breaches
of undertakings in restraint of trade.
[2] The dispute between the parties arose from the purchase on 23 November 1995
by Shoprite Checkers (Edms) Bpk (SCEB) of the businesses of Sentra Koop
Handelaars Bpk and Megasave (Edms) Bpk (the Sentra/Megasave sale). The first
defendant was the managing director of and shareholder in both the latter companies,
the second defendant was a shareholder and director and the third defendant an
employee. The two companies were buying organisations, Megasave conducting a
wholesale and Sentra a retail business. A buying organisation acts as a broker between
the supplier and the dealer. The dealer becomes a member of the buying organisation
which negotiates prices to be paid with the supplier. The buying organisation pays the
supplier and thus accepts the credit risk of the member who must reimburse it. The
buying organisation earns its revenue from rebates and allowances made by the
supplier, part of which is passed on to its members.
[3] It was a condition precedent of the Sentra/Megasave sale that the defendants
conclude agreements in restraint of trade with SCEB. The terms of the restraint
agreements signed by the defendants were identical save that the period of the restraint
for the third defendant was 24 months and for the first and second defendants 36
months, from the time the defendants left the employ of SCEB. The first defendant left
his employment on 31 May 1998, the second defendant on 30 April 1997 and the third
defendant on 30 April 1998. The restraints thus expired on 31 May 2001 and 30 April
2000 respectively. As consideration for agreeing to the restraints the first and second
defendants were paid R1,1 million each and the third defendant R 500 000. Clause 3 of
each of the restraints provided:
‘Die Werknemer onderneem hiermee teenoor Shoprite [SCEB] en op die basis van ‘n beding ten
behoewe van derdes, teenoor elke ander lid van die Shoprite groep vir die duur van die
inperkingsperiode, dat hy nie: -
3.1
‘n Belang sal hê of betrokke sal wees, direk of indirek, in enige hoedanigheid (insluitend maar nie
beperk tot adviseur, agent, konsultant, direkteur, werknemer, finansier, bestuurder, lid van ‘n beslote
korporasie, lid van ‘n vrywillige assosiasie, vennoot, eienaar, aandeelhouer of trustee) in enige entiteit,
direk of indirek, wat gemoeid is in ‘n mededingende aktiwiteit binne die gebied [ie the Republic and
Namibia] nie;
3.2
Enige vertroulike inligting sal openbaar aan entiteite ander dan entiteite verbonde aan die
Shoprite groep en wat geregtig is op sodanige vertroulike inligting nie;
3.3
Ten opsigte van enige mededingende aktiwiteit binne die gebied direk of indirek betrekkinge sal
aanbied of enige dienskontrak sluit met of enige werwing te doen ten opsigte van enige persoon in diens
van die Groep;
3.4
Enige poging sal aanwend om enige voorsiener of klant van die Groep te oorreed om enige
kontraktuele verhouding van welke aard ook al met die Shoprite groep te beëindig of die terme daarvan te
wysig tot nadeel van die Groep nie;
3.5
Binne die gebied en ten opsigte van die besigheid van die Shoprite groep gebruik sal maak van
enige handelsverbintenis van die Groep met enige klant of voorsiener, anders as vir die doel om sy
verpligtinge as werknemer van Shoprite na te kom nie.’
[4] Pursuant to an agreement of sale concluded on 31 October 1997 Shoprite
Holdings Beperk acquired the share capital and loan accounts of OK Bazaars (1929)
Ltd from South African Breweries Ltd. OK Bazaars (1929) Ltd, as the plaintiff was then
known, became a subsidiary of Shoprite Holdings and a member of the Shoprite Group.
[5] In order to make use of an accrued tax loss in OK Bazaars (1929) Ltd a
reorganisation and rationalisation scheme was launched by the Shoprite Group in
August 1998. To give effect to the scheme the business, assets and rights of SCEB
and some 40 other companies in the Shoprite Group (the ‘sellers’) were in terms of an
agreement of sale dated 28 August 1998 sold to OK Bazaars (1929) Ltd, the plaintiff, as
going concerns with retrospective effect to 1 November 1997 (the ‘SCEB sale’).
Thereafter OK Bazaars (1929) Ltd changed its name to Shoprite Checkers (Edms) Bpk
(the respondent in this court and plaintiff in the court below). SCEB subsequently
changed its name to OK Bazaars (1998) (Pty) Ltd and, having disposed of all its
business, became dormant. Clause 2 of the SCEB sale contained the following
condition:
‘It is a condition precedent for the transactions embodied in this Agreement acquiring force and effect that
the approval of the Commissioner of Inland Revenue be obtained in terms of Section 39 of the Taxation
Laws Amendment Act, Act 20 of 1994.’
It is not in dispute that the Commissioner approved the rationalisation scheme on 27
October 1998. SCEB managed the entire business as agent of the plaintiff from 1
November 1997 pending fulfilment of the suspensive condition.
[6] The plaintiff’s cause of action is based on its acquisition of the entire business of
SCEB with the inclusion of the rights SCEB held in terms of the restraints against the
defendants, the plaintiff having taken possession of the business and conducted it. In
the alternative the plaintiff relied on a written cession of the rights arising from the
restraints dated 24 September 1999. The defendants admitted this cession.
[7] The plaintiff alleged in its particulars of claim that the defendants committed
breaches of their restraint agreements by becoming involved in competitive activities,
disclosing confidential information and by the establishment of a competing buying
organisation, The Buying Exchange Company (Pty) Ltd (BEC). The defendants
allegedly, directly or indirectly, enabled BEC to conduct a competing buying
organisation by providing it with advice, knowledge and financial assistance and by
furthering the purpose and aims of BEC. Members of Megasave and Sentra were
encouraged to resign and join BEC. The defendants disclosed the identity of suppliers
and clients of the Shoprite Group to BEC and persuaded them to sever their contractual
relationships with the plaintiff. The plaintiff listed some 11 members who resigned from
Megasave and Sentra between 3 February 1999 and 16 March 1999 (the dates of
resignation of three members are unknown). This conduct, it was alleged, was unlawful
and in breach of the provisions of the restraint agreements. The amount claimed, some
R8m, represented the income the plaintiff would have earned, but for the resignation of
these members, until termination of the first defendant’s restraint.
[8] The defendants pleaded that during the course of the second part of 1998 they
considered the establishment of a buying forum, not a buying organisation, in which
members of Megasave and Sentra could have taken part. The forum would not have
competed with these two organisations. The defendants stated that they had
discussions with certain of these members and gave instructions for the registration of
BEC, the vehicle through which the buying forum would have conducted business. The
defendants were appointed directors of BEC. The defendants added that during
November 1998 certain members of Megasave and Sentra, with whom the buying
forum was discussed, were dissatisfied with these organisations and indicated that they
wanted to resign and to take part in the buying forum through an alternative buying
organisation. Consequently, the defendants pleaded, they informed these members on
17 November 1998, when the first board meeting of BEC was held, that they could no
longer be involved in the proposed organisation since that might infringe the provisions
of their restraint agreements. They gave instructions to Mr B J Van den Berg, BEC’s
secretary, to have them removed as directors and terminated their involvement with
BEC.
[9] At the first hearing before the court a quo Van der Westhuizen AJ granted
absolution from the instance on the basis that the plaintiff had not shown that it had
acquired the rights arising from the restraint agreements on the limited basis that there
was no evidence that SCEB had complied with s 228 of the Companies Act 61 of 1973.
In terms of the SCEB sale, SCEB and the other sellers sold their businesses to the
plaintiff so that a resolution in terms of s 228 was required. On appeal to this court the
order of absolution was set aside and the matter referred back to the trial court. Before
the trial commenced a separation order was made, calling on the trial court first to
determine the issue of liability, including the question whether the persons or entities
listed in the particulars of claim resigned as members and ended their relationship with
the plaintiff as a result of the defendants’ alleged breaches of contract. At the resumed
hearing only the first defendant gave evidence for the defendants and called as
witnesses Mr G S Yusuf, a former employee of the plaintiff and later employed by BEC,
and Mr J R Basson, the managing director of the plaintiff. Van der Westhuizen AJ made
the declarator holding the defendants liable. As I have said, he also found that the
defendants’ conduct caused the resignations of the members of Sentra and Megasave
referred to in the particulars of claim. In coming to these conclusions he rejected the
evidence of the first defendant and drew adverse inferences from the failure of the
second and third defendants to testify and call, amongst others, Van den Berg, as a
witness.
[10] On appeal the judgment of the trial court was attacked on four bases: First,
whether the plaintiff acquired the rights arising from the restraint agreement and, if so,
whether the acquisition was prior to the defendants’ breaches of contract or the
‘damage-causing’ events, viz the resignation of members of Megasave and Sentra;
secondly, whether the defendants breached their obligations under the restraints;
thirdly, whether such breaches, if established, caused the relevant members of Sentra
and Megasave to terminate their membership or their relationship with the plaintiff; and,
fourthly, whether the plaintiff had acquired the Sentra and Megasave business and their
members prior to the resignations of the members (ie whether the plaintiff had in fact
suffered loss).
[11] The trial court found that in the absence of any contradictory evidence the rights
arising from the restraint agreements attached to the businesses of Megasave and
Sentra, forming part of their goodwill. These rights included the rights arising from the
restraint agreements as well as the right to earn an income from sales made by
members of Megasave and Sentra. It was not in dispute that the purpose of the
rationalisation scheme was to transfer the whole of the business of SCEB to the plaintiff.
The rights referred to, the court found, were transferable and were in fact transferred to
the plaintiff with effect from 1 November 1997, but at least on 27 October 1998, when
the suspensive condition to the SCEB sale, the approval of the Commissioner for Inland
Revenue, was fulfilled. It was not in dispute that SCEB conducted the businesses of
Sentra and Megasave from 1 January 1996 as a division of its own business. SCEB
also conducted as part of its enterprise a retail chain of supermarkets under the names
of ‘Shoprite’ or ‘Checkers’. The plaintiff conducted a retail chain of supermarkets under
the names of ‘OK Bazaars’ and ‘Hyperama’.
[12] It was common cause that pursuant to the rationalisation scheme the entire
business of SCEB was sold and transferred to the plaintiff and merged with the
business of the plaintiff. In their additional heads of argument the appellants disputed
only the date of the transfer. The rationalisation scheme was implemented to take
advantage of the accrued tax loss of the plaintiff and this could be done only if the entire
business of SCEB had been transferred to the plaintiff. The plaintiff had in fact used part
of the tax loss in the financial year ending June 1998.
[13] The best illustration that the entire business of SCEB was transferred to the
plaintiff is the fact that SCEB became dormant after the transfer, and the plaintiff
became the operating company in the group. These facts were not disputed at the trial.
[14] The first ground on which the plaintiff relied for its acquisition of these rights as
pleaded in the particulars of claim was that they were transferred and acquired by the
plaintiff’s taking possession of the business and conducting it. This is indeed what the
court a quo found. The defendants, however, characterized this finding differently and
contended that the trial court found that these rights passed to the plaintiff by operation
of the SCEB sale per se. This is not correct. The trial found that the plaintiff ‘die gehele
onderneming van SCEB met effek 1 November 1997, ingevolge die koopkontrak van 28
Augustus 1998, gekoop, oorgeneem en bedryf het’.
[15] What the defendants disputed was the finding of the court a quo that SCEB
managed the business of SCEB with effect from 1 November 1997 as the agent for the
plaintiff. The defendants contended that SCEB managed, pending fulfilment of the
suspensive condition, the business on behalf of Shoprite Holdings Ltd and not on behalf
of the plaintiff. This is not correct. The clause 3 of Part Four of the SCEB sale provides
that the management and control in respect of the businesses -
‘shall be deemed to have passed to the PURCHASER on the Effective Date, from which date it has been
managed and controlled on behalf of the PURCHASER by the SELLERS as its agent.’
The ‘purchaser’ as defined is the plaintiff. Shoprite Holdings Ltd is not one of the
‘sellers’.1 This conclusion is, moreover, borne out by the evidence of Mr A N Van Zyl,
the plaintiff’s secretary, and Ms S J De Boor, an employee of the plaintiff’s auditors. In
addition, the documents submitted as part of the application for approval of the
rationalisation scheme show that the amalgamation of the entire business of SCEB with
that of the plaintiff was envisaged. Moreover, the managing director of Shoprite reported
in February 1998 to the directors of SCEB and Shoprite Holdings Ltd that the merged
businesses were conducted as a single entity from 1 November 1997. The
rationalisation scheme was approved on 24 February 1998 by the directors of both
SCEB and the plaintiff. The SCEB sale was ratified by Shoprite Holdings Ltd on 7 July
1998. The court a quo was therefore correct in finding that SCEB conducted its
business as agent for and on behalf of the plaintiff from 1 November 1997.
1 Clause 1.2.2.18 of Part One of the SCEB sale.
Was there a transfer of the right to enforce the restraints to the plaintiff?
[16] The defendants contended that there was no evidence that the rights had passed
to the plaintiff before 24 September 1999 when the written cession was executed. The
relevant members of Megasave and Sentra had all resigned before that date, viz during
February and March 1999. It follows, so the argument went, that no rights of the plaintiff
were infringed at the time of the resignations and thus no wrongs were committed as
against the plaintiff at that time. The defendants submitted that clause 1 of Part Four of
the SCEB sale, providing that the effective date of the sale would operate retroactively
from 1 November 1997, was a deeming provision inter se that could not affect the
parties to the litigation or elevate any prior act of the defendants to the breach of a right
which the plaintiff did not have at the time of breach. The only evidence of a cession, it
was argued, was the written document of 24 September 1999 which expressly provided
for the cession. For the reasons set out these contentions cannot be accepted.
[17] There is, as was observed, a distinction between the agreement to cede and the
real agreement of cession, although these will often coincide.2
‘The undertaking to cede and the actual cession will often coincide and be consolidated in a single
document, yet they remain discrete juristic acts. However, because they are frequently merged into one
transaction the clear distinction between the obligationary agreement to cede and the actual cession
sometimes tend to be smudged. They are nevertheless distinct in function and it can be so in time: by the
former a duty to cede is created, by the latter it is discharged.’
[18] The SCEB sale was an agreement to effect a cession in future. A cession is an
abstract legal act that is independent of the underlying, obligationary, agreement.3 The
cession of personal rights is brought about by agreement and no formalities are
required.
2 P M Nienaber ‘Cession’ 2 (2) LAWSA 2 ed para 8. See in particular Botha v Fick 1995 (2) SA 750 (A) at
765 A-B.
3 Rabinowitz & another v De Beers Consolidated Mines Ltd & another 1958 (3) SA 619 (A) at 637B-C;
Dreyer & another NNO v AXZS Industries (Pty) Ltd 2006 (5) SA 548 (SCA) at 554E-H; 2 (2) LAWSA 2ed
para 8.
A cession may thus be either express or tacit, to be inferred from the conduct of the
parties.4 Clause 4.3 of Part Four of the SCEB sale requires the sellers, including SCEB,
to ‘use their best endeavours to procure, with effect from the fulfilment of the condition
precedent referred to in clause 2 of Part One [ie the approval by the Commissioner for
Inland Revenue], the cession and assignment of all rights and delegation of all
obligations under the contracts to the PURCHASER with effect from the Effective Date,
[1 November 1997]….’ It does not follow from this clause that a real agreement of
cession could not have been concluded tacitly. No formalities were required for the
cession envisaged: all the parties had to do was to use their best endeavours to procure
it. The intention was clearly that any cession, whenever done and in whatever manner
accomplished, would suffice. The evidence was that SCEB conducted its entire
business on behalf of the plaintiff from the effective date in order to give effect to the
rationalisation scheme. The only inference to be drawn from this is that the parties by
their conduct concluded the real agreement of cession transferring the rights flowing
from the restraint agreements, being part of the business of SCEB, to the plaintiff.5 This
was no ‘mere loose understanding’.6
[19] An agreement to cede may be subject to a suspensive condition, as in this case,
or to a time clause relating to the cession, in which event the right will not pass until the
condition has been fulfilled or the prescribed period has elapsed. Logically, the transfer
of the rights to enforce the restraints was also subject to the same suspensive condition
the SCEB sale was subject to. On fulfilment of the condition the parties inter se are then
4 Botha v Fick at 762B-H and 778F-G.
5 See Botha & another v Carapax Shadeports (Pty) Ltd 1992 (1) SA 202 (A) 213A-B and at 214D-F where
it was said: ‘[T]he obligationary agreement is the sale of the goodwill, including as it does the contractual
right, while the transfer agreement by which the right is conveyed to the purchaser, is constituted by the
delivery by the seller, and the acceptance by the purchaser, of the physical possession of the business,
pursuant to the sale. The incorporeal assets comprising the goodwill are incidental to the business itself
and they are transferred together, in the intendment of the law. … I am convinced that nothing more is
required by law to render the cession effective as between cedent and cessionary …’.
6 2 (2) Lawsa 2 ed para 26.
placed in that position ex tunc.7 In view of my conclusion below, I need not express an
opinion on the effect of such a cession inter omnes, as against third parties, but will
accept that as far as third parties are concerned the rights vested in the plaintiff only on
fulfilment of the condition, on 27 October 1998, a date before the resignation of the
members of Sentra and Megasave.
[20] The defendants, however, contended on appeal that the plaintiff had failed to
show that the rights in respect of Sentra and Megasave formed part of the SCEB sale.
The argument rested on a narrow basis. Clause 3.1.1 of Part One describes the merx
as ‘the SC business comprising: the entire retail supermarket business which is being
sold as a going concern’ as well as the immovable property and share sales and claims
in respect of its subsidiaries. The ‘retail supermarket business’, the argument went, did
not include the businesses of Sentra and Megasave: the latter’s members were
wholesalers and Sentra did not conduct a supermarket business. The definition of
‘going concerns’ in clause 1.2.2.6 of Part One and, by reference, of ‘SC Business’ in
clause 1.2.2.17 again contain the same apparent limitation of the business sold as the
‘retail supermarket business’. It was argued on behalf of the plaintiff that this
interpretation was too restrictive and that, when the whole agreement is seen in context
and against its factual matrix,8 it became clear that the entire business of the seller
under the SCEB sale was to be disposed of. It is not necessary to determine this issue.
The trial court found that the businesses of Sentra and Megasave were transferred to
and conducted by the plaintiff, initially by SCEB on behalf of the plaintiff and later, after
7 ABSA Bank Ltd v Sweet & others 1993 (1) SA 318 (C) 323B-C: ‘It is also now, it appears, accepted that
when a suspensive condition is fulfilled the contract and the mutual rights of the parties relate back to,
and are deemed to have been in force from, the date of the agreement and not from the date of fulfilment
of the condition, ie ex tunc …’. And at 323H: ‘The effect of the aforegoing would therefore appear to be
that rights acquired by third parties during the period of suspension would not be affected by the
retroactivity in regard to the rights of the contracting parties’. Schalk van der Merwe, L F van Huyssteen,
M F B Reinecke and G F Lubbe Contract General Principles 3ed (2007) p 488 refer to Wolfgang
Fikenscher and Andreas Heinemann Schuldrecht (2006) para 59 II A 1 who state: ‘An agreement,
according to which the claim should be transferred to the cessionary retroactively, ie with an effect of an
earlier date, can only be construed as a cession of the claim with effect ex nunc. This is inevitable for the
sake of the protection of the debtor. A retroactive cession is, as matter of principle, excluded and not
conceivable. However, the parties to the cession are obliged to treat each other as if the cession would
have been effective at the earlier date, especially with respect to interest’ (my translation).
8 KPMG Chartered Accountants (SA) v Securefin Ltd & another 2009 (4) SA 399 (SCA) para 39.
fulfilment of the suspensive condition, by the plaintiff itself. For the reasons set out the
real agreement of cession was concluded tacitly and pursuant to the rationalisation
scheme followed by the SCEB sale which was implemented by SCEB taking
possession and managing the entire business on behalf of the plaintiff. Only its effect
was suspended pending fulfilment of the condition precedent. Whether or not the rights
arising from the restraints formed part of the ‘SC business’ as defined is irrelevant: they
formed part of the business of SCEB.
Breach of duty to plaintiff
[21] The defendants contended that, inasmuch as the plaintiff sought to recover
damages suffered in its own right, it had to establish a breach of an obligation owed to it
which resulted in the ‘damage-causing’ events, that is the resignation of the members.
This again depended on the existence of a contractual obligation at the time of the
conduct complained of. The submission was made that it was not within the power of
the plaintiff to render an act retroactively wrongful by taking cession of the relevant right
at a later stage. The first answer to this contention is that the real agreement of cession
on fulfilment of the condition brought about the transfer of the rights of SCEB, arising
from the restraint agreements, to the plaintiff. Since the plaintiff acquired the entire
business of SCEB, the rights ceded also included all rights that had accrued to SCEB
arising from the alleged breaches of the restraints. These rights vested pendente
conditione in SCEB, and would in the ordinary course and in an appropriate case have
provided a sufficient basis for an interdict at the suit of SCEB. Pending fulfilment of the
condition any wrong would have been committed against SCEB, not as against the
plaintiff. But on fulfilment of the condition the rights in respect of the restraint
agreements and also those arising from their breach vested in the plaintiff. The
damages (ie those resulting from the resignation of the members) were suffered only
later after the plaintiff had acquired those rights. The claim for damages thus vested in
the plaintiff.
Defendants’ breaches
[22] The defendants contended that, assuming that the cession had taken place
before resignation of the members, it was not sufficient for the plaintiff to rely on
evidence of generalised breaches of the restraints but that it had to show particular acts
on the part of each defendant that were causally linked to the resignation of each
member. This, the argument proceeded, was not considered by the court a quo.
[23] The trial court found that BEC was a buying organisation that conducted
business in competition with Megasave and Sentra. It was established after a meeting
in August 1998 by members of these organisations at the Little Switzerland Hotel and
convened by the defendants. After the meeting the defendants prepared a business
plan for the proposed buying organisation which was handed in as Exhibit S. BEC was
registered on the instructions of the first defendant. The office of BEC was set up as a
result. The defendants directly or indirectly funded BEC. Their resignation at the first
board meeting of BEC was not in good faith and, the court found, they continued to be
involved in BEC. I accept these findings and the inferences drawn by the trial court.
The conclusion of the court that the defendants planned and funded the establishment
of a competing buying organisation seems to me the most likely, if not the only,
inference to be drawn.
The Little Switzerland Hotel meeting of 12 August 1998
[24] The defendants convened the meeting. The trial court found that what was
discussed was not, as alleged by the defendants, the establishment of a forum that
would have done business through Megasave but a competing buying organisation. The
evidence indeed shows that several of the largest members of Sentra and Megasave
were invited. Mr A Allie, a member of Megasave, testified that everyone invited was
hand-picked and that they represented some of the largest stores. The meeting was
addressed by the first and second defendants, the first defendant playing the leading
role. The third defendant attended. Allie had been informed before the meeting by the
first and second defendants that a new buying group would be formed and that he
would be invited. He indeed received a written invitation and understood the purpose of
the meeting to be the formation of a new group to ‘run down Shoprite Checkers’. Allie
had no interest in supplying small members: all those invited were businessmen
intending to establish a new buying group of which they would be the ‘muscle’. He
understood that the rebate system at Shoprite was to be restructured and a franchise
operation and administration fee introduced. The defendants were apparently unhappy
with this course of events and informed the invitees that the new organisation would be
less difficult, offering more benefits to members. Those invited were to be its directors
and shareholders. They were encouraged to resign from Sentra and Megasave and
take up shares in the new organisation. It was suggested that each had to contribute
R100 000 as capital. New members would be recruited after the buying organisation
was set up and its structure settled. The defendants undertook to provide a business
plan for the new organisation and to submit it to those present for approval. Exhibit S
was eventually produced. No reference was made at the meeting to the restraints to
which the defendants were subject, not even when it became clear at the meeting, as
was put to Allie in cross-examination, that some of those present wanted to form a new
buying organisation.
[25] The trial court accepted that all three defendants had played a leading role in
convening the meeting and that its purpose was the formation of a new buying
organisation in competition with Sentra and Megasave. Had it been the intention to
establish a buying forum, one would have expected the latter two organisations would
have been invited as well, particularly where the concept of a ‘banner group’ had
already been discussed by the second defendant with officials of the plaintiff. The
meeting was clearly confidential and set up to discuss the establishment of a competing
buying organisation. Had the defendants planned a buying forum, one would have
expected them to continue with this enterprise. What they did, however, was to support
the ‘core’ group. As the court found, Exhibit S, was a detailed plan for the establishment
of a buying organisation, produced shortly after the meeting.
Exhibit S
[26] Exhibit S was distributed under the name of the interim management committee,
comprising the first and second defendants. Each of the defendants contributed to it. In
the letter accompanying the exhibit those who attended the meeting were thanked for
their participation. Paragraph two thereof read that ‘[t]he enthusiasm and support that
was shown, convinced us once more of the opportunity to combine our efforts. Attached
herewith a draft document listing our plans.’ The two cellphone numbers listed at the
foot of the letter were those of the first and second defendants.
[27] Exhibit S was headed ‘The Buying Exchange Company’ and commences with
the words ‘[i]n order to investigate\evaluate the need for an independent buying group it
is necessary to analize certain basic concepts …’. It continued with descriptions of the
retail market, the independent market and the future market. Franchises and buying
groups were discussed. It was stated that Shoprite intended Sentra and Megasave to
become fully franchised operations. This information, the trial court found, could only
have come from the first defendant. The formal franchise market was expected to grow
but ‘a second market exists for either the true independent or those operating in the
informal market’. The ‘Concept for the Future’ was to follow a ‘top down approach’ and
to establish a low risk organisation with a small capital base. The ideal structure for the
organisation was a company to be owned and controlled by 15 major equal
shareholders and directors. The shareholders’ agreement had to provide for ownership
to remain in the hands of the major players and for the buy-out of or sale to new
members and directors. Participants on the second level were to be involved on a
membership or smaller shareholder basis. Provision was also made for an operating
company and for the eventual listing on the JSE. It was not intended to sell the
proposed company but rather to provide benefits to members through discounts and
rebates and growth in the share value. The trial court correctly inferred that the latter
provision was probably included to allay the fears of members that, as had happened in
the case of Sentra and Megasave, the business of the new organisation would
eventually be sold by the defendants. This issue was specifically raised at the Little
Switzerland Hotel meeting.
[28] The new organisation was to commence with the establishment and equipping of
a buying office in Gauteng after the formation of the company and the setting of the
share participations. Exhibit S stated that during the initial phase members had to
conduct their accounts through their existing buying organisations because rebates
usually ran to December of each year. It follows that the eventual resignation of
members from their old buying organisations was contemplated. After the initial phase
the buying organisation had to be established and second level members recruited. To
recruit smaller members and allow for their rebate income it was planned to carry their
accounts and pay suppliers on their behalf. It was not the intention to create a franchise
operation although it was envisaged that some sort of ‘combining image’ had to be
offered to smaller members. A timetable was annexed to Exhibit S requiring the
company to be established by 30 September 1998. Dates were set for the
establishment of the company, for top members taking up their shares, for the opening
of the buying office, for the recruiting of second level members and for the
administration and accounts system to be set up. The full organisation had to be
functional by July 1999. Exhibit S also contained an income and expense budget, a pro
forma letter to suppliers (which included a statement that Mr Leon Volschenk had been
appointed as commercial manager) and a draft acceptance form for taking up shares in
the company. The last section dealt with computer and software requirements, invoices
and statements.
[29] The court a quo rejected the evidence of the first defendant that Exhibit S was
merely an ‘interim document’ and not a specific guide to be followed. I agree with this
assessment. The very wording of Exhibit S reflects that it was a detailed business plan
for the establishment of BEC. This conclusion is supported by the reluctance of the
defendants to admit its origin. The first defendant at first said in evidence that he gave
Exhibit S to his attorneys. Although a document substantially the same as Exhibit S was
discovered before the trial, it was only admitted after Allie had given evidence and
referred to it. The first defendant, moreover, denied in a discovery affidavit that there
existed any documents pertaining to the establishment of BEC or the buying forum. He
also denied, after the trial had commenced, that he was in possession of Exhibit S or
that it was prepared by him or on his behalf. The trial court correctly drew the inference
that the defendants deliberately tried to conceal their role in the drafting of Exhibit S and
the establishment of BEC. The trial court, moreover, rejected the contention that an
amount of R1,5m was insufficient for the establishment of a buying organisation. The
manner of financing the new organisation was detailed in Exhibit S, and it was
specifically stated that the capital of the company did not have to be substantial. The
founding members were at first going to purchase through their existing buying
organisations but thereafter through BEC. Moreover, at the first meeting of the BEC
board on 17 November 1998 it was resolved that members would initially have to pay
for their purchases in advance.
Establishment of BEC
[30] Events after the distribution of Exhibit S confirm that the defendants assisted in
implementing the business plan. The first defendant instructed Van den Berg to see to
the establishment of BEC, which was registered on 8 September 1998. The main
business of BEC was to carry on the business of a ‘buying organisation’. The first
defendant provided both the name of the company and the description of its main
purpose. An office was found and equipped. Volschenk and Van den Berg were
appointed as managing director and secretary respectively. The defendants were BEC’s
first directors. Some of those who attended the meeting at the Little Switzerland Hotel
took up their shares and were appointed directors of BEC. The members of Sentra and
Megasave who became members of BEC resigned, as contemplated in Exhibit S,
during February and March 1999, after BEC started operating.
[31] The minutes of the board meeting of BEC on 17 November 1998 confirm most of
these events. It was attended by some of the persons who had attended the meeting at
the hotel. Also present was the chairman of Verbruikers Groothandel. It was resolved
that ‘an option be exercised to take up shares in The BEC in exchange for shares by
The BEC in VGK’. Verbruikers was a competing buying organisation and the undisputed
evidence for the plaintiff was that the first defendant knew from early 1998 that it was for
sale. Verbruikers, the trial court found, would provide the vehicle through which the
members of BEC could make their purchases. It was resolved that the share capital of
BEC was to be R1,5m and that there would be 15 main shareholders with ten board
members and five executive directors. BEC was to function with a small capital base
and members initially had to pay for their purchases in advance. The minutes show that
BEC was geared to start operating on 1 February 1999 and that members would be
informed of the date on which business would commence so that they could resign their
existing membership. Legal opinion on the correct procedure for resignation had to be
obtained. The minutes of the meeting of 3 February 1999 reflect that the resignations of
members of Sentra and Megasave had been discussed with attorneys. Negotiations
with suppliers had already taken place and they required written resignations. The
conclusion of the trial court that BEC was established in breach of the defendants’
obligations under their restraints seems unassailable.
Funding of BEC
[32] Extensive evidence of the funding of BEC by the defendants through the
Sengroep group of companies was led. MEGS was a wholly owned subsidiary of
Sengroep, the shares of which were held by DSAL, Superbia and Desbel (all private
companies). The three defendants were directors of MEGS during 1998 and 1999. They
were also directors of Sengroep and DSAL in 1998. Van den Berg was the secretary of
most if not all of these companies. Howard, their auditor, described Van den Berg as the
‘de facto executive’ of the group. In the 1998 and 1999 financial years the third
defendant and Van den Berg were among the directors of Karaat (a private company
associated with the Sengroep group). The latter was also the secretary of BEC.
[33] The account into which the funds flowed was an ABSA money market account,
the account holder of which was reflected as BEC in the books of the bank on 28
October 1998. The account holder was subsequently indicated as MEGS. The trial court
concluded that the account was indeed that of BEC. The defendants in their concise
heads of argument filed at the request of this court admitted the findings made by the
trial court to the effect that the account was that of BEC. Yet a day before this appeal
was heard the defendants filed a supplementary note seeking to withdraw the
admissions including the admission that the money market account referred to
‘belonged’ to BEC. The plaintiff had inadequate time to address the issues raised
properly.
[34] It is not necessary to determine these issues. Clause 3 of the restraints prohibit
the defendants from having an interest in or being involved with, directly or indirectly, in
any capacity, including that of a financier, a competing activity. The flow of funds
commenced with a transfer of R500 000 on 28 October 1998 from an account of MEGS
to the current account of Karaat. On the same day BEC’s current account was credited
with the amounts of R10 000 and R90 000 and Karaat’s account debited accordingly.
On that day an amount of R400 000 was transferred from Karaat’s current account to
the disputed BEC money market account. Further transfers were made from this
account to BEC’s current account. MEGS also advanced a loan of R500 000 to
Volschenk during 1999 while the defendants were its directors. At that time they knew
that Volschenk was the managing director of BEC. The ‘transfer’ of this loan to
Sengroep, and later to Desbel because the directors of Desbel had approved it does not
detract from the conclusion that the defendants funded BEC through companies in the
Sengroep group. Whether or not the disputed money market account belonged to BEC
or MEGS is of no consequence. The fact is that both amounts originated from MEGS of
which all three defendants were directors at the relevant times. They were, therefore,
directly or indirectly, involved as financiers in BEC. In addition, the evidence of the first
defendant was that, since they were still involved with BEC during October 1998, he
requested Van den Berg to have ‘’n paar rand beskikbaar’ for BEC. The transfer of the
R100 000 (in two amounts of R10 000 and R90 000) occurred, as he said, ‘in my tyd’.
The first defendant also said that he did not put any money of his own into BEC but that
if they, the defendants, had contributed then the funds had to be returned. There is no
evidence that the amount of R100 000 was repaid after the defendants had allegedly
withdrawn from BEC. If any person could have explained the movement of the funds it
would have been Van den Berg. The defendants did not call him as a witness. The
inference that the defendants, in breach of their restraints, financed BEC is unavoidable.
Causation
[35] The defendants submitted that the evidence did not establish that the members
of Sentra and Megasave resigned as a result of any conduct on the part of each
defendant and that the plaintiff had not shown that the resignations were not attributable
to other factors related to dissatisfaction with the plaintiff. In addition, it was submitted
that the plaintiff had not demonstrated that there was a contract or some other
relationship between the plaintiff and these members. The trial court, it was argued,
erred in not applying the ‘but for’ test to establish whether the conduct of the defendants
was the factual cause of the resignations.9 The argument was that the trial court
approached the issue on the basis that the defendants bore some or other burden of
showing that the members resigned for reasons other than those alleged by the plaintiff.
This is not how I understand the judgment of the court a quo. In this court Combrinck
AJA in reversing the order of absolution from the instance held that there was prima
facie evidence that the 11 members had resigned because of the conduct of the
defendants. The expression prima facie evidence10 ‘is used to mean prima facie proof of
an issue the burden of proving which is upon the party giving that evidence. In the
absence of further evidence from the other side, the prima facie proof becomes
conclusive proof and the party giving it discharges his onus.’ I understand the judgment
of the trial court to be saying no more than this. Nor was the question whether the
members who resigned were members or buyers from Sentra and Megasave disputed
in evidence: they had all resigned.
9 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700E-H.
10 Ex parte The Minister of Justice: In re Rex v Jacobson & Levy 1931 AD 466 at 478. See the discussion
by D T Zeffertt A P Paizes and A St Q Skeen The South African Law of Evidence (formerly Hoffmann and
Zeffertt) (2003) p 124 ff.
[36] The witnesses for the plaintiff readily conceded that a large number of members
resigned from Sentra and Megasave during the period following September 1998 and
that there was dissatisfaction among them due to the policy of retaining rebates, the
1999 incentive scheme, the opening of competing stores and stringent structural and
policy changes. The defendants relied on allegations to the effect that some of the
members resigned as a result of the incentive package that was introduced at the end
of 1998. Another member who resigned had requested a special concession which was
denied. Other members were upset about competing stores of Shoprite opening or the
structural changes that were introduced. The trial court found that there was no
admissible evidence of the reasons why the defendants resigned and that the
defendants’ contentions were speculative. In addition, it found that the resolution taken
by the BEC board at its meeting on 17 November 1998 that members would be advised
when to resign from Sentra and Megasave implied that the incentive packages for 1999
could not have played a role in the decisions of four founding members of BEC because
the package only became known in December 1998. The letters of resignation of these
four members were worded in the same terms, all dated 3 February 1999, and faxed
from BEC’s offices. The majority of members who resigned were, by January 1999,
reflected as members of BEC although they only resigned in February 1999. This
indicates, as Combrinck AJA found, at least prima facie that the resignations were
consequences of the defendants’ conduct. In the absence of evidence to the contrary
the prima facie proof becomes conclusive.
[37] Even if the facts relied upon by the defendants were established they do not
assist them. The essence of the plaintiff’s case is that the defendants acted in concert
pursuant to a carefully contrived plan to establish, set up and finance BEC. This conduct
constituted a breach of clause 3.1 of each of the agreements in restraint of trade. The
resignations of the members were consequences of this conduct: these members would
probably not have resigned but for the establishment of BEC. A plaintiff suing for breach
of contract is, in any event, not required to show that the breach by the defendant was
the cause but only that it was a cause of the loss.11 Nor was it necessary for the plaintiff
to show particular acts of each defendant that were causally linked to the resignation of
each member of Megasave and Sentra. Each defendant is liable for the conduct of the
others individually or in co-operation with the other in breach of their respective restraint
agreements in order to achieve their common object.12 Their breach, the establishment
of BEC, led to the resignations of the members of Sentra and Megasave or contributed
to it.13 The trial court found that the defendants acted in concert in pursuit of the
common purpose to establish BEC. They intended members of Sentra and Megasave
to resign and, a fortiori, caused their resignations.14 It follows that the appeal should be
dismissed.
Order
[38] The appeal is dismissed with costs, including the costs of two counsel.
_________________
F R MALAN
JUDGE OF APPEAL
11 Thoroughbred Breeders’ Association v Price Waterhouse 2001 (4) SA 551 (SCA) para 66.
12 Aetiology Today CC t/a Somerset Schools v Van Aswegen & another 1992 (1) SA 807 (W) at 816C-E
and compare Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd 2000 (4) SA 915 (SCA)
para 10. The defendants were in a sense ‘joint wrongdoers’ as the term is used in delict.
13 Thoroughbred Breeders’ Association para 66: ‘Where a plaintiff can prove that the breach of the
defendant was a cause of the loss (as opposed to the cause thereof) he should succeed even if there
was another contributing cause for the loss, be it an innocent one, the actions of a third party … or,
logically, the carelessness of the plaintiff himself in failing to take reasonable precautions to avoid it.’
14 I am not called upon to consider whether all the damages claimed is a consequence of the resignations
of the relevant members.
APPEARANCES:
For Appellant:
J G Dickerson SC
A Smalberger
Instructed by:
Edward Nathan Sonnenbergs Inc
Cape Town
Matsepes Inc
Bloemfontein
For Respondent:
P Coetsee SC
D van der Walt
Instructed by:
Werksmans Inc
Cape Town
Naudes
Bloemfontein | THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
11 March 2011
Status:
Immediate
Please note that the media summary is intended for the benefit of
the media and does not form part of the judgment of the Supreme
Court of Appeal.
GROBBELAAR v SHOPRITE CHECKERS
The Supreme Court of Appeal dismissed an appeal today by three
former employees of the plaintiff’s predecessor who were sued in
the Cape high court for damages arising from their breaches of
agreements in restraint of trade they had entered into with
companies subsequently acquired by the plaintiff. The Cape high
court upheld the plaintiff’s claim and held that the defendants were
liable to the plaintiff. It was ordered that the quantification of the
damages allegedly suffered be postponed until after adjudication
of the question of liability. The Supreme Court of Appeal found that
the defendants had established and funded a buying organisation,
The Buyers Exchange Company (Pty) Ltd, in breach of their
restraint agreements which competed with Megasave and Sentra,
the businesses of which were acquired by the plaintiff’s
predecessor and subsequently by the plaintiff, and caused certain
members to resign from them. The court also found that the
plaintiff had acquired the rights arising from the restraint
agreements and their breach when it acquired the entire business
of its predecessor. |
2926 | non-electoral | 2015 | THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case no: 916/2013
In the matter between:
PETROS DUMISANE JWARA
FIRST APPELLANT
VICTOR MPHO JWILI
SECOND APPELLANT
RATSHEKI LAMPROS MOKGOSANI
THIRD APPELLANT
and
THE STATE
RESPONDENT
Neutral citation: Jwara v S (916/13) [2015] ZASCA 33 (25 March 2015)
Coram:
Brand, Ponnan and Willis JJA and Dambuza and Gorven
AJJA
Heard:
12 March 2015
Delivered:
25 March 2015
Summary: Criminal Law ─ various offences under Prevention of Organised
Crime Act 121 of 1998 and other common law crimes ─ admissibility of
evidence obtained pursuant to a direction made under Interception and
Monitoring Prohibition Act 127 of 1992 ─ exercise of discretion to admit a
proper one ─ evidence of crimes sufficient ─ convictions good ─ no basis to
interfere with sentences.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from: South Gauteng High Court, Johannesburg (Coetzee J)
The appeals against the convictions and sentences of all three appellants are
dismissed.
________________________________________________________________
JUDGMENT
________________________________________________________________
Gorven AJA (Brand, Ponnan and Willis JJA and Dambuza AJA
concurring):
[1] Quis custodiet ipsos custodes?1 Thus enquired the satirist Juvenal in his
poem on his attempts to enforce moral behaviour. Since Plato, this phrase has
been used to lament the corrosive effect of corrupt police and judicial officials.
When Captain Sizane, the investigating officer in this matter, stumbled on a
reference to the first appellant being involved with a suspected manufacturer of
substances proscribed under the Drugs and Drug Trafficking Act2 (the Drugs
Act), he was confronted with what appeared to be just such corrupt behaviour.
This came about after he had obtained an order under the Interception and
Monitoring Prohibition Act3 (the Interception Act) to monitor calls made to and
from the cellphone of that suspected drugs manufacturer. The conversation said
that the first appellant had undertaken to store the seized drug manufacturing
machinery and return it to the suspect after the matter had been resolved. The
1 Juvenal Satire 6.346–348. The translation has been rendered as: „Who will guard the guards themselves?‟
„… I know the plan that my friends always advise me to adopt:
"Bolt her in, constrain her!"
But who can watch the watchmen?
They keep quiet about the girl's secrets and get her as their payment;
everyone hushes it up.‟
2 The Drugs and Drug Trafficking Act 140 of 1992.
3 The Interception and Monitoring Prohibition Act 127 of 1992.
first appellant was also said to have told the arrested wife of the suspect what to
mention in her warning statement to the police. The first appellant was, at the
time, a Superintendent in the South African Police Service (SAPS) and the head
of the West Rand Organised Crime Unit.
[2] This discovery led Captain Sizane to set about applying for a direction
under the Interception Act from the designated judge, Seriti J, to monitor the
cellphone calls made to and from the first appellant‟s cellphone. This direction
was granted. An extension of that direction was afterwards obtained from the
same judge relating to the cellphones of the second and third appellants and one
Captain Shange (Shange). The three appellants and Shange were all members of
the West Rand Organised Crime Unit at the time.
[3] In due course, the three appellants were arraigned, along with Shange, in
the South Gauteng High Court, sitting at Johannesburg before Coetzee J. They
confronted 13 charges; not all of which applied to all of the accused. Before the
trial commenced, Shange died. This left the three appellants as the only accused
persons in the trial. They were all acquitted on counts 2, 4, 5 and 8. The
remaining charges confronting them, and on which they were convicted as
charged, were as follows:
Contravention of s 2(1)(d) of the Prevention of Organised Crime Act 121
of 1998 (the POCA), during the period 2005 to 2007 by acquiring or
maintaining an interest in an enterprise – second and third appellants
(Count 1);
Contravention of s 2(1)(f) of the POCA, during the same period by
managing the operation of an enterprise – first appellant (Count 3);
Dealing in drugs by supplying cocaine, ecstacy and crystal methaqualone
to Norman Kokoeng on 8 February 2007 – first and second appellants
(Count 6);
Defeating or obstructing the course of justice by releasing a suspect,
Kenneth Bogopane and/or causing a false entry to be made in the SAPS
occurrence book, resulting in his release on 10 February 2007 – first and
second appellants (Count 7);
Theft of 800kg of ephedrine, a scheduled substance, at OR Tambo airport
on 3 October 2007 – all three appellants (Count 9);
Supply of ephedrine, a scheduled substance, by selling it for R1 425 000
– all three appellants (Count 10);
Fraud by giving out to MJ Pretorius on 3 October 2007 at OR Tambo
airport that they were authorised to seize a consignment of ephedrine for
the purposes of investigation – all three appellants (Count 11);
Attempted theft of 5.7 kilograms of cocaine on 9 October 2007 at OR
Tambo airport – all three appellants (Count 12);
Fraud by giving out to JD Scott that they were authorised to apply for a
certificate in terms of s 252A of the Criminal Procedure Act 51 of 1977 in
respect of the ephedrine at OR Tambo airport on 3 October 2007 – all
three appellants (Count 13).
[4] The first appellant was sentenced to an effective 25 years‟ imprisonment,
the second appellant to an effective 22 years‟ imprisonment and the third
appellant to an effective 20 years‟ imprisonment. The appellants were all denied
leave to appeal by the court below but granted bail pending the outcome of a
petition to this court. This court granted leave to appeal against the convictions
and sentences on 28 February 2012.
[5] The appeal lapsed for failure to file the record timeously. Some six
months thereafter the state applied to have the bail of the appellants revoked.
Despite opposition, an order to that effect was granted by Satchwell J. This
elicited an application for leave to appeal that order by the appellants, which
was granted by Satchwell J. Although that appeal was before us, all concerned
agreed that events had overtaken it. Nothing more need be said on the matter.
[6] An application for reinstatement of the appeal was brought and must be
decided. The explanations given for allowing the appeal to lapse were, to put it
mildly, somewhat unconvincing. However, consideration of such an application
also involves weighing the prospects of success on appeal. Since it was
necessary to fully consider the very substantial record for that purpose, it
seemed appropriate to deal with the merits of the appeal. The appeal was
therefore reinstated at the hearing without objection.
[7] I turn to summarise the offences. Count 1, relating to the second and third
appellants, concerned acquiring an interest in an enterprise through a pattern of
racketeering activity in contravention of s 2(1)(d) of the POCA. The word
„enterprise‟ is defined in the POCA as follows:
„“Enterprise” includes any individual, partnership, corporation, association, or other juristic
person or legal entity, and any union or group of individuals associated in fact, although not a
juristic person or legal entity.‟
As was pointed out by this court in S v Eyssen:4
„It is difficult to envisage a wider definition. A single person is covered. So it seems is every
other type of connection between persons known to the law or existing in fact; those which
the legislature has not included specifically would be incorporated by the introductory word
“includes”. Taking a group of individuals associated in fact, which is the relevant part of the
definition for the purposes of this appeal, it seems to me that the association would at least
have to be conscious; that there would have to be a common factor or purpose identifiable in
the association; that the association would have to be ongoing; and that the members would
have to function as a continuing unit. There is no requirement that the enterprise be legal, or
that it be illegal. It is the pattern of racketeering activity, through which the accused must
4 S v Eyssen 2009 (1) SACR 406 (SCA) para 6.
participate in the affairs of the enterprise, that brings in the illegal element; and the concepts
of “enterprise” and “pattern of racketeering activity” are discrete. Proof of the pattern may
establish proof of the enterprise, but this will not inevitably be the case.‟
[8] Pattern of racketeering activity is, in turn, defined as meaning:
„. . . the planned, ongoing, continuous or repeated participation or involvement in any offence
referred to in Schedule 1 and includes at least two offences referred to in Schedule 1, of
which one of the offences occurred after the commencement of this Act and the last offence
occurred within 10 years (excluding any period of imprisonment) after the commission of
such prior offence referred to in Schedule 1‟.
Schedule 1 includes contraventions of s 3, 4 and 5 of the Drugs Act which deal
with the manufacture and supply of scheduled substances, the use and
possession of proscribed dependence producing substances and dealing in such
dependence producing substances. I shall refer to all of these by way of the
general term „drugs‟. Schedule 1 also includes the common law crimes of theft
and fraud. This, in effect, means that a group of people, associated in fact,
which commits two offences under schedule 1 within a ten year period,
maintains an interest in an enterprise through a pattern of racketeering activity.
[9] Count 3, relating to the first appellant, was that he contravened s 2(1)(f)
of the POCA by managing an enterprise through a pattern of racketeering
activity. Apart from the management aspect, the same criteria apply. All of the
other counts fall under Schedule 1.
[10] It was correctly accepted by the appellants that, apart from counts 6 and
7, the outcome of the appeal hinged largely on the question whether the
acceptance into evidence of the intercepted phone conversations obtained under
the Interception Act should be set aside on appeal.
[11] The court below recognised that the provisions of the Interception Act
limit the right to privacy accorded in the Constitution.5 There was no attack on
the constitutionality of the Interception Act. Therefore, evidence obtained in
accordance with it would thus have been obtained without violating this, or any
other, right. Where a right under the Constitution is impinged on by legislation,
the prescripts of that legislation must be strictly adhered to. The appellants
correctly submitted that the principles governing the obtaining and carrying out
of search and seizure warrants apply equally to a direction under the
Interception Act. The position on search and seizure was explained by Langa
DP in Investigating Directorate: Serious Economic Offences & others v
Hyundai Motor Distributors (Pty) Ltd & others; In re Hyndai Motor
Distributors (Pty) Ltd & others v Smit NO & others,6 when he said:
„On the proper interpretation of the sections concerned, the Investigating Directorate is
required to place before a judicial officer an adequate and objective basis to justify the
infringement of the important right to privacy. The legislation sets up an objective standard
that must be met prior to the violation of the right, thus ensuring that search and seizure
powers will only be exercised where there are sufficient reasons for doing so. These
provisions thus strike a balance between the need for search and seizure powers and the right
to privacy of individuals.‟7
[12] The relevant parts of s 2(2) of the Interception Act read as follows:
„Notwithstanding the provisions of subsection (1) or anything to the contrary in any other law
contained, a judge may direct that-
(a) . . .
(b) . . . all communications which have been or are being or are intended to be transmitted
by telephone or in any other manner over a telecommunications line, to or from a person,
body or organization be intercepted; or
5 Section 14(d) of the Constitution of the Republic of South Africa, 1996.
6 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd 2000 (2) SACR
349 (CC) para 55.
7 References omitted.
(c)
conversations by or with, or communications to or from, a person, body or
organization, whether a telecommunications line is being used in conducting those
conversations or transmitting those communications or not, be monitored in any manner by
means of a monitoring device.‟
Some relevant definitions are:
„“monitor” includes the recording of conversations or communications by means of a
monitoring device‟.
„“monitoring device” means any instrument, device or equipment which is used or can be
used, whether by itself or in combination with any other instrument, device or equipment, to
listen to or record any conversation or communication‟.
„“telecommunications line” includes any apparatus, instrument, pole, mast, wire, pipe,
pneumatic or other tube, thing or means which is or may be used for or in connection with the
sending, conveying, transmitting or receiving of signs, signals, sounds, communications or
other information‟.
[13] In their heads of argument, the appellants attacked the admissibility of the
evidence obtained under the Interception Act on three fronts. The first was the
grant of the initial direction by Seriti J in respect of the first appellant. The
gravamen of this was that the application did not comply in all respects with the
elaborate procedure set out in the Act. In argument, they conceded that this
matter was distinguishable from that of S v Pillay & others8 where the direction
was obtained on false information contained in the affidavit supporting the
application. In the present matter, it was correctly conceded that, whilst there
may have been minor shortcomings in the application, they were at most
technical in nature and did not go to the foundation of the application.
[14] The second point of attack was that the Interception Act did not provide
for the interception of cellphone communications. This was not addressed in
argument but was also not expressly abandoned. The reasoning was that,
because cellphones were not operative in South Africa when the Act was
8 S v Pillay & others 2004 (2) SACR 410 (SCA).
promulgated and because there has been a subsequent amendment to the Act
which makes explicit mention of this form of communication, the Act did not
provide for interception of that form of communication. As has been seen in the
section and the relevant definitions, however, this submission does not bear
scrutiny. It was dealt with in S v Cwele & another,9 where Koen J rejected a
similar submission. In the light of the diffidence in advancing this argument
before us, I need only say that I do not disagree with the finding in Cwele that
this form of communication is included in the Act.
[15] The third point of attack was directed at the finding of the court below
that, even if the application did not strictly comply with the Act, the evidence
obtained as a result of the direction was nevertheless admissible. A failure to
obtain evidence within the strict confines of the Act means that it falls outside
the protective umbrella provided by the Act and results in a violation of the
right to privacy. Such evidence may be rendered inadmissible under s 35(5) of
the Constitution which provides:
„Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded
if the admission of that evidence would render the trial unfair or otherwise be detrimental to
the administration of justice.‟
A number of factors meriting consideration in this enquiry were mentioned in
Pillay, without these being regarded as exhaustive. These were:
„. . . the kind of evidence that was obtained, what constitutional right was infringed, was such
infringement serious or merely of a technical nature and would the evidence have been
obtained in any event.‟10
[16] On the facts of that matter, there were three primary considerations. The
direction had been obtained by way of false information in the affidavit
supporting the application, the evidence obtained under the Interception Act
9 S v Cwele & another 2011 (1) SACR 409 (KZP).
10 Paragraph 93.
was supplemented by additionally tainted evidence by way of a statement
obtained by undue influence and there were other means of investigation
available. The concern was therefore expressed that:
„In our view, to allow the impugned evidence derived as a result of a serious breach of
accused 10's constitutional right to privacy might create an incentive for law enforcement
agents to disregard accused persons' constitutional rights since, even in the case of an
infringement of constitutional rights, the end result might be the admission of evidence that,
ordinarily, the State would not have been able to locate.‟11
[17] The court below was alive to the relevant principles and set out clearly
several features which weighed in the scale in favour of the admissibility of that
evidence. When the appellants were asked whether they could make any
submissions to the effect that the discretion was wrongly exercised, they
candidly conceded that they could not do so. The deficiencies were of a purely
technical nature. There was nothing misleading said in the application. The
procedure in the Interception Act was followed as closely as possible. The
monitoring of the conversations was the only means to investigate. In this
regard, Captain Sizane testified that, since the suspects were all members of the
SAPS and because of the endemic corruption therein, he could not use any other
investigative tools without jeopardising the investigation. Not only was the
exercise of the discretion a proper one but, in my view, it was correct and, in the
circumstances of the matter, to have excluded that evidence would have led to a
failure of justice. The provisions of s 35(5) therefore did not serve as a basis to
exclude the evidence obtained pursuant to the directions and the admission of
the evidence by the court below cannot be impugned.
[18] The court below dealt in extensive detail with the evidence on each count.
This included setting out the intercepted communications which specifically
11 Paragraph 94.
bore on the counts in question. The picture that emerged was a clear one. The
first appellant was managing the operations of the other two appellants,
informers, drug dealers and Shange in seizing and onselling drugs.
[19] In brief, the evidence on counts 6 and 7 was as follows. One Kokoeng
had been an informer for the first appellant when he was stationed at
Vereeniging. When the first appellant was transferred to become the head of the
West Rand Organised Crime Unit, he arranged for Kokoeng to be transferred
there. He introduced Kokoeng to the second appellant and Shange as being the
two loyal juniors who would be running around with him. After a successful
raid for drugs, the second appellant misled Kokoeng, saying that it had been
unsuccessful. When Kokoeng discovered this, he phoned the second appellant
who undertook to straighten it out. The second appellant arranged to meet him
in Randfontein with his friend Bogopane. They met the second appellant at a
church there and he handed to them some cash and a stash of drugs for which
they were to find a buyer. When Bogopane went to meet a prospective buyer, he
was arrested. As a result he phoned the first appellant who promised to solve the
problem. Whilst he was in the holding cells at Randburg, the second appellant
visited him and told him that Shange had told him the arrest was unlawful. The
arrest of Bogopane in possession of drugs was confirmed by a reserve police
officer who was mystified as to why he was never called to testify in the case
against Bogopane. The substances found in his possession were sent for analysis
and found to be cocaine, ecstacy and crystal methaqualone, all prohibited
substances under the Drugs Act. Despite this, the charges against Bogopane
were withdrawn. The police occurrence book recorded that Bogopane was
released by the second appellant and Shange on the basis that there was no
evidence which connected him to the offence. The second appellant was the
investigating officer and the docket subsequently went missing. The court
below correctly convicted the first and second appellants on these counts.
[20] I turn to consider counts 9, 10, 11 and 13. The evidence of Mr Pretorius,
an employee of Swissport Cargo, was that on 3 October 2007 he was
approached by three police officials. They introduced themselves as
Mokgosane, Shange and Jwili – the first and last also being the names of the
third and second appellants respectively - from the West Rand Organised Crime
Unit and told him that they were looking for a parcel. They showed him an
airways waybill which corresponded with the parcel they were looking for and
told him the parcel contained cocaine. He was requested to contact them when
the person came to fetch the parcel. They took the parcel with them for
safekeeping. The parcel weighed 189 kilograms and they loaded it onto a
pickup truck with a forklift. He contacted them when the person came to collect
the parcel and all three returned and took the person with them.
[21] Captain Scott was approached telephonically on 2 October by Shange to
obtain authorisation to do a controlled delivery of the consignment. He received
a written request the following morning but heard nothing more. The substance
taken was tested and found to be ephedrine, a scheduled substance under s 3 of
the Drugs Act. Only 30 000 grams of this was submitted for analysis and
subsequent destruction. According to the transcripts of the intercepted
communications, the controlled delivery was arranged by the appellants. On
3 October, the third appellant told the first appellant during a conversation
which was intercepted that he had taken possession of the ephedrine and that a
buyer had already taken two bags and that more would be supplied the
following day. The third appellant told the first appellant that he would let him
have R1 million that evening. This arrangement was confirmed by Shange in a
conversation with the first appellant where they congratulated each other on a
successful job. There were further communications concerning payment where
it was indicated that R425 000 had been received and that another R1 million
was expected.
[22] Count 12 related to an incident where an employee of the South African
Revenue Service, stationed at OR Tambo airport discovered 5.7 kilograms of
cocaine in a container with the assistance of a dog. The second and third
appellants and Shange arrived in the search area and informed her that they
were waiting for that shipment and were to take it by way of a controlled
delivery. They were not authorised to be in the search area and were also not
accompanied by an authorised person as was required. They were also unable to
produce documents to show that they were entitled to do a controlled delivery
with the shipment. After they had been asked for those documents, they
disappeared. This attempt at theft of the consignment was also referred to in the
transcripts of the phone calls intercepted under the Interception Act.
[23] In addition, it was clearly shown by a forensic audit of the financial
affairs of the appellants that, in 2007, all three appellants received moneys in
excess of their salaries and for which they could not account. The first appellant
received R1 044 169.61, the second appellant R69 679.61 and the third
appellant R56 430.56. Many of the intercepted communications revolved
around the amounts which had been negotiated with purchasers and how
payments were being made to the appellants. No point would be served in
repeating the analysis of the court below. In argument before us the findings and
reasoning of the court below were not seriously challenged.
[24] Counts 1 and 2 related to the first appellant managing an enterprise as
defined in the POCA and the other two participating in it. Taking into account
the other offences, all of which took place during 2007, it is clear that the state
proved that the appellants were associated with each other in fact in a pattern of
racketeering activity managed by the first appellant and participated in by the
second and third appellants.
[25] All of this compelling evidence required an explanation. The failure of
any of the appellants to call countervailing evidence placed them at risk.12 This,
too, was conceded in argument. In my view, considering the evidence in its
totality, the court below correctly found that the state had proved its case
beyond reasonable doubt. There is therefore no basis on which to set aside the
convictions.
[26] As regards the sentences, despite an invitation to do so, none of the
appellants was able to point to any misdirection by the court below. Neither
were they able to submit that the sentences were so startlingly inappropriate as
to induce a sense of shock. As a result, this court is not entitled to interfere.
[27] In the result, the appeals against the convictions and sentences of all three
appellants are dismissed.
___________________
T R Gorven
Acting Judge of Appeal
12 Osman & another v Attorney-General, Transvaal 1998 (2) SACR 493 (CC) para 22; S v Boesak 2001 (1)
SACR 1 (CC) para 24.
Appearances
For First Appellant:
C Meiring
Instructed by:
Dolf Jonker Attorneys, Bryanston
Symington & De Kock, Bloemfontein
For Second & Third
Appellants:
WB Ndlovu
For Respondent:
I Bayat
Instructed by Director of Public Prosecutions | THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL
FROM
The Registrar, Supreme Court of Appeal
DATE
25 March 2015
STATUS
Immediate
Please note that the media summary is for the benefit of the media and
does not form part of the judgment.
JWARA v STATE (916/2013) [2015] ZASCA 33 (25 March 2015)
The SCA today dismissed an appeal by the three appellants who were, at
the time, members of the West Rand Organised Crime Unit of the South
African Police Service. The appeal against their convictions related to
various offences under the Prevention of Organised Crime Act 121 of
1998 by way of managing and participating in an enterprise involved in
racketeering through dealing in drugs, obstruction of justice, theft and
fraud. The SCA held that evidence obtained under the Interception and
Monitoring Prohibition Act 127 of 1992 was properly admitted and that
the State had proved the charges beyond a reasonable doubt. The appeal
against the sentences was likewise refused. |
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1254 | non-electoral | 2008 | "THE SUPREME COURT OF APPEAL\nREPUBLIC OF SOUTH AFRICA\nJUDGMENT\nCASE NO: 207/07\nReportable\nIn th(...TRUNCATED) | "THE SUPREME COURT OF APPEAL\nREPUBLIC OF SOUTH AFRICA\n\nMEDIA SUMMARY – JUDGMENT DELIVERED IN TH(...TRUNCATED) |
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1219 | non-electoral | 2008 | "THE SUPREME COURT OF APPEAL\nREPUBLIC OF SOUTH AFRICA\n\nJUDGMENT\n\nReportable\nCase no: 164/07\n(...TRUNCATED) | "THE SUPREME COURT OF APPEAL\nREPUBLIC OF SOUTH AFRICA\n\nMEDIA SUMMARY – JUDGMENT DELIVERED IN TH(...TRUNCATED) |
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