Legal Aid Board in re Four Children

The matter originated in an urgent High Court application brought in the Eastern Cape by four minor children, assisted by the Legal Aid Board (through a Justice Centre), seeking to protect their interests in an ongoing custody and relocation dispute between their divorced parents. The High Court (Schoeman J) dismissed the application on the basis that the children lacked locus standi to litigate without the assistance of a curator ad litem. The factual dispute between the parents subsequently became moot and was resolved. Despite this, the Legal Aid Board, without a mandate from the children and in the absence of any respondent, sought leave to appeal in its own name, contending that the High Court judgment adversely affected its ability to fulfil its constitutional mandate to represent children. The Legal Aid Board effectively sought a declaratory order clarifying its standing and the standing of children to litigate, invoking s 38 of the Constitution.

No order was made, as the Supreme Court of Appeal lacked jurisdiction to entertain the matter.

The case reaffirms the strictly appellate nature of the Supreme Court of Appeal’s jurisdiction under the Constitution. It clarifies that the SCA cannot be used as a forum for obtaining declaratory relief or legal clarity in the abstract under s 38 of the Constitution. The judgment is also significant for its authoritative restatement of South African common-law principles concerning the role and function of a curator ad litem and the representation of minors, even though those remarks were not determinative of the outcome.