Separation of powers in the spotlight in SCA ruling over children's centres

2016-06-03 22:25


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Cape Town – The separation of powers has again come into the spotlight with a successful appeal of a court judgment involving four educational centres in the Western Cape.

Initial court action was launched to protest against the closing of the four centres in Ottery, Die Bult, Wellington and Eureka.

The applicants, Justice Alliance of South Africa (Jasa) and the governing body of the Ottery Youth Care and Education Centre, argued that these changes were unconstitutional and unlawful.

They alleged that the provincial government had already begun to transfer children from these homes to secure 'lock-down' prison-type facilities.

Jasa said it could not be in the best interests of the children to be placed with criminal offenders and those awaiting trial.

Western Cape High Court Judge Gayaat Salie-Hlophe ruled in August that the centres were to be regarded as child and youth care centres providing a residential care programme.

Order to provide strategies

The placement of children at other facilities had to be freshly considered.

She also ordered the national and provincial social development ministers to provide strategies for child and youth care centres.

The Western Cape social development and education MECs, as well as their departments, launched an appeal.

The SCA upheld the appeal on Wednesday. 

In its judgment, it said the high court orders effectively determined where and how public funds and resources should be deployed.

SCA justices found that decisions to establish these centres resided "in the heartland of the exercise of national and provincial executive authority".

"The separation of powers doctrine requires a court to refrain from intervening in decisions of this nature, particularly as they are polycentric and policy-laden in nature," the appeal judgment stated.

Children accommodated separately

The high court failed to appreciate that the transfer of the centres from the education department to the social development department would involve a labour relations process for transferred staff.

It said the provincial departments had repeatedly given information about the children found to be in need of care and protection due to behavioural problems. 

The departments had said that these children, who were placed with sentenced or awaiting trial youngsters, were accommodated separately. They also attended separate programmes during the day.

The SCA said this was not disputed and an invitation to accompany an inspection of the centres was not accepted.

"Furthermore, as pointed out by the appellants, there is no provision in the Children's Act which requires that children in the different categories should be housed separately in the sense that they need to be placed in separate facilities," the judgment stated.

"All that the Children's Act contemplates is that children in secure care be kept separate from children not in secure care."

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