By Elsabe Steenhuisen
The disbursements in cases ProBono.Org refers to legal practitioners (“LPs”), are mostly sponsored by the LPs, such as their travel expenses and photocopies. But what about the sheriff’s costs, which can be a substantial amount? We all know that the party who instructs service should pay for it. In terms of the Guidelines of ProBono.Org LPs may, if they choose, recover disbursements from the pro bono referred clients. However, it becomes a totally different ball game when we practise in the Children’s Courts when we represent the child or one of the parents who can barely afford a daily living, let alone paying sheriff’s costs!
The question then arises whether service by the sheriff is always a requirement to secure the presence of a witness in Children’s Court proceedings? What about the respondent (the other parent or care-taker or interested party) whose appearance is necessary during the proceedings – how is the presence of these persons secured? The full answer to these two questions is on our website here.
The position regarding the witness:
The Regulations pertaining to the Children’s Act
When we look for the answer in the Children’s Act, we have to be aware of two sets of regulations:
1. The Regulations relating to Children’s Courts and International Child Abduction 2010, also referred to as the Justice Regulations (“JR”), and refer to sections 42-75; 161-166 and 274-280.
2. The General Regulations regarding Children, 2010 (“GR”), and refer to sections 90,103, 142, 160, 179, 190, 212, 227, 253 and 280 of the Children’s Act, and other centres and facilities.
The Children’s Act
Section 53 of the Children’s Act (“Who may approach court”)
Section 53 and JR 7(2) provide who may bring a case to the Children’s Court. What is the position if one of these persons mentioned in JR 7(2), or the persons named in section 53, want to call a witness? JR Form 4 has the answer. It sets out the procedure to secure witnesses at court (one has to submit particulars of the witness/es to the clerk of the court within fourteen days before the date of the hearing). Form 4 states that the costs of the service of the subpoena on any witness will be borne by the person who requests the witness subpoena unless, in exceptional cases, the court directs that the state bears such costs. Neither the Act nor the Regulations define “exceptional cases”, but one should certainly be able to argue that indigency, or acting pro bono for a child who has no known parent or carer, or has an indigent carer, should be sufficient reason to invoke this mechanism. Form 4 does not refer to sections 58 and 59 of the Children’s Act, neither to Form 6 of the JR, nor to JR 9, which all deal with witnesses.
Witnesses in the Children’s Court
Section 58 of the Children’s Act provides for the right to adduce evidence. This means that any party to the proceedings may call a witness. Section 59(1) of the Children’s Act stipulates the procedure to secure the presence of a witness. The clerk must, in the prescribed manner, summons a person to appear as a witness at either the request of the presiding officer (section 59(1)(a)), the child or a person whose rights may be affected by an order in those proceedings (section 59(1)(b)), or the legal representative appearing for either the child or party/ies involved in the case (section 59(1)(c)).
A request to the Clerk for the issuing of a subpoena by any of the above-mentioned persons, other than the Presiding Officer, must:
a) be made at least at fifteen (15) court days before the date of the hearing;
b) be in writing on Annexure O; and
c) filed in the specific Court file.
Annexure O is available from the clerk of the Children’s Court.
JR 9(1) permits the clerk to subpoena at least ten (10) days before the date of the hearing, any person to appear as a witness in a matter in terms of Form 6. JR 9(2) permits a person referred to in section 59(1)(b) or (c), to request the clerk within 15 days before the hearing, to issue a subpoena to the witness the person intends to call. JR 9(3) provides for personal service by either the sheriff, or a clerk, or a person authorised by the presiding officer. It provides also for service by registered post or any other manner as directed by the presiding officer. As JR 9(3) does not refer to service by the SAPS, one can argue that section 59(2) of the Children’s Act makes provision for this option. Other options, as pointed out above, but only on authorisation by the court, may be service by a social worker; any other person, such as a family member or a friend; Facebook; e-mail, or facsimile. It is obvious that the court’s authorisation should be in writing.
Form 6 provides for service of a copy of the subpoena personally on the witness; or to a person apparently not younger than 16 years and apparently residing or employed at the residence/place of employment/business of the witness if the witness could not be conveniently found; or by affixing/placing it to/in the outer/principal door/security gate/post box of the residence/place of employment/business of the witness as the witness kept the residence/place of employment/business closed.
There are various options available for the legal practitioner to secure the presence of a witness at court. Many of the options would be far more cost effective and affordable than service by the sheriff or the SAPS (see Section 15(1)(b) of the Magistrates’ Courts Act). The LP should only first obtain authorisation from the presiding officer by substantiating the reasons for the application to court. I want to leave you with the suggestion of one of our colleagues, Lesley Blake – should the sheriffs, being also officers of the court, not be required to also do pro bono work as part of their social responsibility towards the public? After all, it is members of the public who pay their fees.