Legal Aid Board in re Four Children

Four children (three aged 11 and one aged 14) whose divorced parents had joint custody found themselves caught in a dispute when their mother wished to relocate to another city and take them with her, which the father opposed. The children approached a Justice Centre (Legal Aid Board) for assistance. The Justice Centre brought an urgent application on behalf of the children for relief restraining the mother from relocating the children. The application required overcoming the hurdle that minors cannot generally litigate without a guardian, and their guardians (the parents) had a conflict of interest. The Legal Aid Board invoked s 28(1)(h) of the Constitution instead of using the common law mechanism of appointing a curator ad litem. Schoeman J dismissed the application on the basis that the children needed a curator ad litem and could not proceed without one. The matter became moot as the family difficulties were resolved. The Legal Aid Board then sought leave to appeal, not on behalf of the children (who had no mandate and were unaware/opposed to the proceedings), but acting in the public interest under s 38 of the Constitution, seeking declaratory relief concerning its own rights and standing to represent children.

• Whether the Supreme Court of Appeal has jurisdiction to hear what is framed as an appeal but is in substance an application for declaratory relief
• Whether an appeal lies against the reasons for a judgment rather than the order itself
• Whether the Legal Aid Board could pursue proceedings without the consent or knowledge of the children it purported to represent
• The proper procedure for enabling children to litigate when their guardians have a conflict of interest
• The function and role of a curator ad litem
• The application of s 28(1)(h) and s 38 of the Constitution in circumstances where common law remedies are available

No order was made. The Supreme Court of Appeal declined to exercise jurisdiction over the matter.

The Supreme Court of Appeal's constitutional authority under s 168(3) is confined to deciding appeals and issues connected with appeals. The Court has no original jurisdiction to hear applications for declaratory relief, even when such applications are framed or presented as appeals. An appeal lies against an order made by a court, not against the reasons given for making the order. Where common law remedies are available and sufficient to address the issue at hand, courts should not reach constitutional questions. The function of a curator ad litem is to advance the case and interests of the minor they represent, not to adopt a neutral or 'objective' approach - the latter being the role of the Family Advocate when neutral assistance is required.

Nugent JA made several important obiter observations: (1) The Constitutional Court has repeatedly directed that where it is possible to decide a case without reaching a constitutional issue, that is the course that must be followed. (2) There is no bar to employees of the Legal Aid Board being appointed as curators ad litem for minors - they are generally admirably suited to such appointments as they have the necessary qualifications and skills and will seldom have conflicts of interest. (3) Legal practitioners are commonly appointed as curators ad litem and can conduct litigation themselves in that capacity, provided no conflict of interest arises. (4) The court has broad discretion in appointing curators ad litem, guided solely by the best interests of the minor, and can supplement or alter the ordinary authority of a curator as the occasion requires. (5) If the Legal Aid Board wished to invoke s 38 of the Constitution for declaratory relief on profound questions, notice should be given to interested parties, including the relevant minister responsible for children's welfare. (6) The threat by the mother's attorneys that punitive costs might be sought against officers of the Justice Centre personally was 'unwarranted'.

This case is significant for clarifying: (1) the strict jurisdictional limits of the Supreme Court of Appeal, which cannot entertain applications for declaratory relief disguised as appeals; (2) the proper function of a curator ad litem, which is to advance the interests of the minor, not to adopt a neutral or 'objective' stance; (3) the principle that constitutional avoidance should be applied - where common law remedies are available and sufficient, courts should not reach constitutional questions; (4) the availability and suitability of employees of the Legal Aid Board to be appointed as curators ad litem for children; (5) that Legal Aid Board employees, having the necessary qualifications and skills, can conduct litigation as curators without needing to employ external legal representatives, unless a conflict of interest arises. The judgment emphasizes the importance of following correct procedural pathways and respecting jurisdictional boundaries in the South African court system.