Section 14 of the Children's Act 38 of 2005 and the child's capacity to litigate*

T Boezaart
BA LLB LLD
Professor and Head, Department of Private Law, University of Pretoria 

DW de Bruin
BA LLB LLM LLD
Presiding Officer, Children S Court, Heidelberg

OPSOMMING
Artikel 14 van die Kinderwet 38 van 2005 en die verskyningsbevoegdheid
van 'n kind
Artikel 14 van die Kinderwet bepaal dat elke kind die reg het om 'n saak na 'n hof te bring asook om bygestaan te word om 'n saak aldus te bring. In hierdie bydrae word artikel 14 en die invloed/gevolge daarvan op 'n kind se verskyningsbevoegdheid ondersoek. Met die oog hierop word die gemeenregtelike beperkings op 'n infans en 'n minderjarige se verskyningsbevoegdheid oorweeg. Daar word ook aangedui hoe hierdie beperkings in die verlede gehanteer is en hoe die rol van byvoorbeeld die kurator ad litem i n regspraak aangewend en ontwikkel is. Die Grondwet het in artikel 28(1)(h) vir kinders 'n reg op regsvertenwoordiging in siviele sake op staatskoste beding, mits dit andersins tot wesenlike onreg sou lei. Die regspraak het daartoe bygedra dat die onderskeie rolle van 'n kurator ad litem en 'n artikel 28(1)(h)-regsverteenwoordiger uitgeklaar is. Alhoewel artikel 14, veral in samewerking met artikel 10, 'n bydrae lewer om kinders se deelname in die regsproses te verseker, word aan die hand gedoen dat artikel 14 nie met die gemeenregtelike beperkings op 'n kind se verskyningsbevoegdheid weggedoen het nie.

1Introduction
The Children's Act introduces new possibilities regarding child litigation in South Africa. The inclusion of section 14 in the Children's Act raises the question whether it is possible for children to institute proceedings in a court. Section 14 states that "[e]very child has the right to bring, and to be assisted in bringing a matter to a court, provided that matter falls within the jurisdiction of that court". One of the objectives of the Children's Act is "[t]o give effect to certain rights of children as contained in the Constitution". The Constitution contains a general provision granting "everyone" (thus including children) the right to access to courts. Furthermore it adds in the children's section the right to be assigned a legal practitioner in civil proceedings affecting the child.

The aim of this article is to investigate the common-law rules applicable to a child as a party to litigation in South Africa. Furthermore, it is to determine to what extent section 14 has amended the common-law rules and whether a child can litigate in person without the assistance of his or her parent or guardian and if not, to consider the feasibility of such a development in South African law.
Common-law rules in respect of the child as an infant and a minor have remained unchanged and unchallenged until the partial commencement of the Children's Act in 2007. The Children's Act inter alia pioneered a new era in child participation in legal proceedings which necessitated the consideration of the child's right of access to a court as indicated in section 14 of the Children's Act.

2 Common-law Rules Regarding a Child's Capacity to Litigate
2 1   Infans
When considering the child's capacity to litigate, the common law distinguished between the child's capacity as an infans and as a minor. In common law the infans had no capacity to litigate, at least not in his or her own name. Consequently an infans could not sue or be sued in his or her own name. The parent or guardian of the infans had to sue for or be sued on behalf of the in fans. However, the in fans was the party to the lawsuit and not the parent or guardian. Therefore, any rights or obligations arising from the court order were the rights and/or obligations of the infans. The parent or guardian had to represent the infans in court because the infans did not have independent standing in court.

2 2  Minors
In general, a minor had limited capacity to litigate as a plaintiff, defendant, applicant or respondent in a civil lawsuit. The general tenor regarding litigation in the common law involving minors was that minors had no persona standi in iudicio and could not institute court proceedings or defend legal proceedings without the assistance of their parents or guardians. The minor had to be assisted by his or her natural guardian when issuing summons or be assisted by his or her guardian in a representative capacity when being sued. Alternatively an action couldbe brought by or against the minor assisted by his guardian. A minor who had not reached the "age of discretion" had to sue or be sued in the name of his or her parent or guardian. Where the minor had reached the "age of discretion" he or she could either act as plaintiff or defendant assisted by the guardian, or had to sue or be sued through the agency of the guardian.

3 Interpreting Section 14 of the Children's Act
Section 14 of the Children's Act is one of two predominant sections relating to child participation in legal proceedings, the other being section 10. In terms of section 14 every child has the right to bring, and to be assisted in bringing a matter to court. Section 10 provides for "every child that is of such an age, maturity and stage of development ... to ... participate in an appropriate way". It also adds that "views expressed by the child must be given due consideration". The child's right to participate in judicial proceedings can either occur through direct participation "or through a representative or an appropriate body, in a manner consistent with ... procedural rules". Section 14 thus provides an opportunity to realise section 10 as it links a child's right to participation with his or her right of access to a court.

Section 14 of the Children's Act has a general application and is thus not confined to matters relating to the Children's Act. The Children's Act places a corresponding duty on parents and guardians to represent children and to assist them. For the present discussion the question if section 14 has any effect on the common-law rules regarding the child's capacity to litigate, and if so, to what extent, is to be considered. One view is that an extension of the child's capacity to litigate may be derived from a literal interpretation of the words "every child" in section 14.
Heaton explores the possibility of section 14 amending the common-law rule that an infans does not have the capacity to litigate. She mentions that it is arguable that section 14 amends the common law by conferring limited capacity to litigate on an infans thereby entitling the infans to assistance that will supplement the infans limited capacity. She doubts whether the legislature intended to change the common law. The reason for this is that it would lead to the extraordinary result that aninfanswould be able to litigate with his or her guardian's assistance while being unable to enter into an elementary contract with his or her guardian's assistance. When entering into a contract is considered, the parent or guardian will have to do so for and on behalf of the infans and mere assistance will be insufficient. Heaton comments that a child over the age of seven years has the right in terms of section 14 to insist on having his or her limited capacity to litigate be supplemented by means of his or her parent, guardian, curator ad litem or the High Court. It must be noted that section 14 makes no distinction between children below seven and children aged seven and above. It is therefore difficult (or impossible) to read the differentiation into the section.
It has been correctly pointed out that there is a distinction between participation and representation. However, will a child not sometimes need the assistance of a legal representative to bring a matter to court? If this is the case, then the interrelatedness of section 14 of the Children's Act and section 28(1)(h) of the Constitution is apparent. The fact that a child sometimes has no capacity to litigate on his or her own does not deprive that child of the right of access to a court in terms of section 14 of the Children's Act.
Section 39 of the Constitution which deals with the extension and development of the common law in an open and democratic society applies in this regard. Reading section 14 of the Children's Act (which includes the phrase "every child") in conjunction with section 39(2) ofthe Constitution raises the question whether the legislature intended to amend the common law and if so, to what extent has the common law been amended in respect of children's capacity to litigate. The extension and development of the common law in an open and democratic society requires scrutiny of the applicable common-law rules. If the legislature intended to amend the child's capacity to litigate the Bill of Rights has to be scrutinised for such an interpretation. There is no indication in the Bill of Rights that the legislature intended to supplement the common law in relation to the infans capacity to litigate. There is also no indication in the Children's Act that the legislature intended to supplement the infans' capacity to litigate. The same applies to minors. Section 14 does assure a child of the right to be assisted in bringing a matter to court, thereby complying with the general provision of section 34 of the Constitution.
On the other hand, the Children's Act in some instances where the child's participation is vital, provides a mechanism to enable the child to have access to court. The following are examples:
a)	The Children's Act provides for participation by the child with regard to parental responsibilities and rights agreements. A child, with leave of the court, may bring an application to amend or terminate a parental responsibilities and rights agreement. If section 14 of the Children's Act granted the child capacity to litigate, why would section 22(6) require the court's permission in this instance? The most likely interpretation seems to be that in this instance the child's right of access to a court in terms of section 14, entails an entitlement to obtain assistance in seeking leave to bring an application to amend or terminate a parental responsibilities and rights agreement. As mentioned above, the interrelatedness between section 14 of the Children's Act and section 28(1)(h) of the Constitution becomes apparent because the child will need assistance.
b)	Similarly section 28 of the Children's Act, when dealing with a court-ordered termination,  extension, suspension or restriction  of parentalresponsibilities and rights, grants the child permission to bring such an application. However, the court's leave is again required for him or her to do so.
(c) The same applies when a parenting plan that was made an order of court has to be amended or terminated: The child acting with leave of the court may bring the application.
These examples seem to indicate that section 14 was not intended to deal with the formal requirements applying to litigation by or on behalf of a child. It seems that section 14 grants a child a right to bring his or her case to court without setting out procedural requirements on how that right is to be realised.

4 The Minor's Capacity to Litigate
The parent or guardian of a minor will normally litigate for and on behalf of the child. The minor (aged seven or more) may sue or be sued in his or her own name assisted by his or her parent or guardian.
Furthermore, courts have a wide discretion to appoint someone to substitute the guardian, commonly known as a curator ad litem, in conducting litigation in the name and in the interests of the minor. Four established instances exist in South African law where a curator ad litem may be appointed by a court to represent a minor in legal proceedings. These instances are where the minor has no parent or guardian; where the interests of the minor clashes with those of the parent or guardian or if a possibility of such a clash exists; where theparent or guardian of the minor cannot be found; or where the minor's parent or guardian unreasonably refuses to assist the minor. The curator ad litem has the child's interests at heart. This is amplified by the reported judgments to date on the appointment of a curator ad litem to assist a child in matters that may possibly affect the interests of that child. A few examples serve to illustrate such appointments:
a)	The case of Du Toit v Minister of Welfare and Population Development (Lesbian and Gay Equality Project as Amicus Curiae) dealt with the joint adoption of children by a same-sex couple. The court had a thorough report filed by a curator ad litem appointed by the court a quo regarding the welfare of the couple's teenage children and of children (born and unborn) in general.
b)	The case of S v M (Centre for Child Law as Amicus Curiae) involved the sentencing of the primary caregiver of young children. The court appointed a curator ad litem to represent the interests of the children of the appellant.

In some other instances a minor has full capacity to litigate in civil matters. These are the following:
a)	When the High Court grants a minor venia agendifor purposes of particular proceedings.
b)	Where an unmarried father who is himself a minor is sued in the maintenance court for maintenance of his child. Likewise a minor complainant has locus standi in iudicio to claim maintenance.
c)	When a minor intending to get married applies to the High Court for the substitution of parental consent. It is necessary to distinguish between two situations in this regard. Firstly, where the minor has no parent or guardian or is for any good reason unable to obtain the consent of the parent or guardian the application must be brought to the children's court. Secondly, where theparent, guardian, or the children's court unreasonably refuses consent. A judge of the High Court can overrule a refusal by the children's court and can authorise the marriage irrespective of the refusal of the child's parents or guardian.

In exceptional cases, usually in urgent matters, the court will grant permission to persons other than a parent, guardian or curatorad litem to act on the minor's behalf. The court may also use its inherent power as upper guardian of minors to assist a minor. When a minor institutes proceedings without assistance or required consent, it has been argued that the proceedings are void. The correct view is deemed to be that the proceedings are not necessarily void and that a judgment in favour of the minor is valid and enforceable, but not a judgment against the minor.

Whether an emancipated minor has locus standi in iudiciois as yet undecided. The question of locus standi in iudicio was considered in Ahmed v Coovadia7" and Sesing v Minister of Police? In Ahmed v Coovadiathe court accepted that a minor could be sued without parental assistance if he was bound to an agreement on the basis of his emancipation. It was mentioned that "[t]he authorities seem to show, though not as clearly as one would like, that liability, and therefore locus standi in judicio, is limited to transactions that are connected with the business or other sphere of emancipation". In Sesing v Minister of Police it was necessary to distinguish between absolute or complete emancipation and relative or incomplete emancipation. The facts of this case are that a minor sued the Minister of Police and a policeman for damages arising from physical injuries sustained in a shooting incident and claimed, inter alia, that he was tacitly emancipated. The court decided that there is a difference between the case where a minor, free from parental authority, is permitted to manage his own affairs and the case where a minor, because of disinterest shown by his parent, is left to his own devices. The court ruled that a minor is emancipated when his parent or guardian agrees, either expressly or tacitly, that he can act as an economically independent person. The court came to the conclusion that the minor had not succeeded in proving that he was in fact emancipated. The court left the question open whether emancipationincludes locus standi in iudicio. This case illustrates the precarious position of a minor relying on emancipation to support his locus standi
in iudicio. In Sesing v Minister of Police the minor was left without a remedy.

It is concluded that emancipation does not include locus standi in iudicio because emancipation does not create majority status and the consent of the parent can be withdrawn at any time and in doing so terminate the emancipation of the minor. It appears that in the past courts have frequently assumed that an emancipated minor has locus standi in iudicio. As the age of majority has been lowered, it is probable that it may become less important in the future. Furthermore, section 28 of the Children's Act will provide a solution as an application can be made in terms of this section to terminate parental responsibilities and rights if circumstances so require. It is suggested that justice did not prevail in the Sesing case. The common law provided solutions such as venia agendior the appointment of a curator ad litem. In the Vistacase the court of its own accord assisted the minors. However, if all the traditional mechanisms fail, it is suggested that section 14 of the Children's Act should/can in future prevent minors from being denied justice in this way.

5 What Has Section 14 of the Children's Act Achieved?
One of the very first cases in which the litigation project of the Centre for Child Law at the University of Pretoria was involved, was Ex parte Van Niekerk: In re Van Niekerk v Van Niekerk. In casu Hartzenberg J observed that the children involved in a disputed access (now contact) application had an interest in the outcome of the proceedings. The court considered the question whether the children ought to be joined as parties in the proceedings and observed that unless they were joined as parties, they would not be able to appeal against an adverse order.
At the request of the mother an application for the appointment of a curator ad litem for the children was brought before De Villiers J, who agreed that the children required legal assistance, but was in favour of an appointment in terms of section 28(1)(h) of the Constitution. Section 14 was not operative at that stage. Subsequently a legal practitioner was appointed in terms of section 28(1)(h). The court voiced its concern regarding the failure of children in general to be granted the opportunity to communicate their views or to have their interests independently placed before the court. The court emphasised that the Constitution enjoins the court to protect the best interests of children and only if the children or somebody on their behalf presents the views of the children to the court, will the court have a balanced presentation of the situation. The two children were later joined as parties to the proceedings.

The question now remains whether section 14 would have made any difference if the section was in effect at the time. It is apparent from the wording of section 14 that the legislature intended to align this right of the child with the general provision contained in section 34 of the Constitution.

Comparing section 10 of the Act with the provisions in article 12 of the Convention on the Rights of the Child and article 4(2) of the African Charter on the Rights and Welfare of the Child, justifies the conclusion that section 10 should be read with section 14 of the Children's Act to extend the child's participatory right to be heard in matters affecting the child. Section 14 in turn enhances the child's participatory right by extending this right of the child to matters where the child initiates civil litigation.     When comparing section 14 with article 12(2) of the
Convention on the Rights of the Child and article 4(2) of the African Charter, the section should be interpreted extensively to allow the broadest possible platform for the voice and views of children to be heard and considered in court. Therefore it can be argued that section 14is linked to section 28(1)(h) of the Constitution and extends beyond the reach of section 10 which limits participation to those children who are "of such age, maturity and stage of development" as to be able to participate and express their views in an appropriate way.
The Children's Act extends the jurisdiction in matters in which a children's court may adjudicate. The provision allowing an application for the care of and contact with a child to be considered by the children's court ensures that more children may have a say as to their right to be cared for and to have contact with their parents. The child's right to access a court and to be assisted in doing so enhances the child's participatory right even further.

Recent case law has confirmed that a child may apply directly to the Legal Aid Board for a legal representative to be appointed in terms of section 28(1)(h) of the Constitution: In Legal Aid Board v R a twelve-year-old girl approached Childline for assistance in a divorce dispute where custody was in dispute. The court appointed a legal practitioner in terms of section 28(1)(h) based on its finding that substantial injustice would likely result if a separate legal representative was not appointed for the child. The court held that the Legal Aid Board was entitled at the state's expense to render assistance to a minor in the discharge of the state's obligation in terms of section 28(1)(h) of the Constitution if the failure to do so would otherwise result in substantial injustice. The court further held that the Legal Aid Board was not constrained by a need to obtain either the consent of the child's guardian or that of any person exercising parental responsibilities and rights in relation to the child, or an order of court.  It is submitted that the Legal Aid Board could also have applied to the court for the appointment of a curatorad litem in terms of section 14 of the Children's Act.

Children are guaranteed the right to legal representation in criminal matters. The right to legal representation provided for in section 28(1)(h) of the Constitution extended the scope of legal representation to civil matters and has broadened the range of proceedings affecting children. The provision of section 14 of the Children's Act allows the broadest possible platform of access for children to the court, and the guarantee of legal representation entrenched in section 28(1)(h) of the Constitution ensures that where the assistance for children is required it may best be met by making provision for legal representation.

6 The Effect of Section 28(1)(h) of the Constitution
The paramountcy of the best interests of the child is entrenched in the Constitution However, the Constitution does not directly addressparticipation of children in legal matters. The inclusion therefore of section 10 and section 14 in the Children's Act has bridged this gap. The Constitution does provide for the child's right to legal representation. The nexus between section 14 of the Children's Act and section 28(1)(h) of the Constitution has already been referred to. The application of section 28(1)(h) has elicited concerns regarding procedural problems that may present themselves. However, case law has alleviated some of the procedural problems envisaged. Some of these cases are discussed below.

Soller v G is the first reported case that fully deals with the interpretation and application of section 28(1)(h). The matter to be
considered involved an application by a fifteen-year-old boy, K, for the variation of a custody (now care) order in which his custody was allocated to his mother. The court granted K the right to express his views and in doing so to obtain legal representation in terms of section 28(1)(h) of the Constitution. After the court ascertained that the attorney who brought the application had been struck off the roll of attorneys, Satchwell J decided that the matter warranted the assignment of a legal practitioner in terms of section 28(1)(h) and assigned an attorney on a pro bono basis. The court explained that a legal representative did not fulfil the same role as the office of the Family Advocate and elaborated on this distinction. The Family Advocate is not a legal representative.

The court, while referring to the Convention on the Rights of the Child observed that the significance of section 28(1)(h) lies in the recognition found in the Convention on the Rights of the Child that the child's interests and the adult's interests will not always intersect and therefore a need exists for separate representation of the child's views. K in this case wished to reside with his father and was adamant about his decision. Normally the expressed wishes of the child would only be a persuasive factor in determining the best interests of the child. With Soller v G the court emphasised the importance of giving a child the opportunity to express his or her views and to be assisted in doing so by a legal practitioner assigned in terms of section 28(1)(h).

Following on the decision in the Van Niekerk case, the court in Centre for Child Law v Minister of Home Affairsdrew a distinction between a curator ad litem and a legal representative appointed in terms of section 28(1)(h) of the Constitution. The matter concerned the placement of unaccompanied foreign children with adults in the Lindela Repatriation Centre and the failure to ensure that the children were brought before a children's court as required by the Child Care Act 74 of 1983. The court was concerned about the imminent and unlawful deportation of such children. It appeared that the children who were deported from Lindela back to their countries of origin were loaded into trucks and taken to the train station. There they were transferred onto a train, transported to their country's border, loaded back onto a truck and taken to the nearest police station in that country. The court held that the way the children were treated resulted in serious infringements of the children's fundamental rights.

The court at first appointed a curator ad litem to represent the unaccompanied foreign children. The powers and duties of the curator ad litemfor the children were inter aliato investigate the circumstances and make recommendations to the court regarding their future treatment and to institute legal proceedings in the enforcement of their rights. The curatorad litemsubsequently, while reporting back to the court, successfully applied for an order in terms of section 28(1)(h) whereby the commissioner of child welfare in Krugersdorp was instructed to appoint a legal practitioner for each of the thirteen children at Dyambo Youth Centre. The legal practitioner was ordered to appear before the children's court within five days from the date of the order. The court clearly distinguished between the role of a curator ad litem and that of a legal representative appointed in terms of s 28(1)(h).

The appointment of a legal representative for the child concerned was raised mero motu by the court in R v H. The mother brought an application for variation of her custody (now care) order with a view to awarding her sole custody and guardianship of the child. Judge Moosa appointed a legal representative, who was subsequently joined as second defendant, for the child after referring to the application of section
28(1)(h) of the Constitution and article 12 of the Convention on the Rights of the Child.

7 Conclusion
Section 14 of the Children's Act entrenches the child's right to bring, and to be assisted in bringing, a matter to a court that has jurisdiction. This right referred to in section 14 is of general application and not limited to the Children's Act only. It opens the door for every child to bring a matter to a court that has jurisdiction.

It is concluded that section 14 did not remove the common law restrictions imposed on a child's capacity to litigate. A recent decision of the High Court and later the Supreme Court of Appeal left the issue undecided: Four children brought an application to the High Court to protect their interests in a dispute between their parents. They were assisted by the Legal Aid Board. In the court a quo Schoeman J dismissed the application and the Legal Aid Board took the matter on appeal. The Supreme Court of Appeal decided that what has been placed before it is no appeal although it was presented as such. The Legal Aid Board was actually applying for a declaratory order and as the Supreme Court of Appeal has no original jurisdiction it could not hear the application. In casu the children, aged eleven and fourteen, were caught up in a dispute between their divorced parents: At first the parents lived in the same city and were able to manage their joint custody (now care) rights harmoniously. At some stage the mother wanted to relocate to another city and the children approached a Justice Centre for assistance. The Justice Centre brought an application for the appointment of a legal practitioner under section 28(1)(h) of the Constitution. This application was dismissed and prompted the "appeal". The Supreme Court of Appeal made no order. The obiter remarks made no mention of section 14 of the Children's Act or the effect thereof but instead reverted to theexisting "ready and simple mechanism" of common law, namely a curatorad litem, to overcome the hurdle that "a minor is not generally competent to engage in litigation without the assistance of his or her guardian".

The conclusion is reached that the effect is that the common-law rules relating to the child's capacity to litigate have not been amended. It is convincingly argued by some analysts that it could not have been the intention of legislature to amend the common-law rules relating to the infans (or minor's) capacity to litigate. It is suggested that section 14 was not intended to deal with the formal requirements applying to litigation by or on behalf of a child. A minor has a right of access to a court in a matter affecting the minor and children are entitled to be assisted in bringing legal matters to court. However, the means through which they are to present the case are still regulated by the common law.