Disclosure in Centre for Child Law v the Governing Body of Hoërskool Fochville

Michael Tsele

Abstract


When a party refers to evidentiary material in the course of litigation, ordinarily this party is under an obligation to make this evidence available to his opponent, particularly when called upon to do so. However, over the years various principles have developed which make this obligation subject to certain limitations. The Fochville cases dealt with a situation where a party to litigation sought to withhold certain information from its adversary, notwithstanding the fact that the material had been relied upon as a ground for the institution of the litigation. This note critiques the judgments of the High Court and in particular the Supreme Court of Appeal in this dispute. In so doing, it draws on useful foreign law to argue that the Supreme Court of Appeal's judgment was an unfortunate one in that the court failed to clarify with reasonable precision the circumstances in which a party to litigation involving children's interests may legitimately resist disclosing evidence to his adversary, in which the party resisting disclosure invokes the principle of public interest immunity. In this regard, the note concludes that the High Court's overall approach to the issue is to be preferred.


Keywords


Anonymous evidence; best interests of the child; children's rights; disclosure in civil litigation; discovery; excuses for non-discovery: fairness: openness; public interest immunity; secrecy in litigation

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References


Bibliography

Literature

Jardine Lives and Criminal Trials

Jardine D The Lives and Criminal Trials of Celebrated Men (1835) (Kessinger Legacy Reprints) (Kessinger Publishing Whitefish, MT 2010)

Malherbe "Impact of Constitutional Rights on Education"

Malherbe R "The Impact of Constitutional Rights on Education" in Boezaart T (ed) Child Law in South Africa (Juta Cape Town 2009) 420-455

Pillay and Zaal 2011 SALJ

Pillay R and Zaal FN "Protecting Parties from Ambush: Some Recommendations on Discovery in Children's Court Litigation" 2011 SALJ 632-642

Case law

A (A Child), Re: SC [2012] UKSC 60

Bernstein v Bester 1996 2 SA 751 (CC)

Biowatch Trust v Registrar Genetic Resources 2009 6 SA 232 (CC)

Bridon International GMBH v International Trade Administration Commission 2013 3 SA 197 (SCA)

Centre for Child Law v Governing Body of Hoërskool Fochville In Re: Governing Body of Hoërskool Fochville v Centre for Child Law 2014 4 All SA 196 (GJ)

Centre for Child Law v The Governing Body of Hoërskool Fochville 2016 2 SA 121 (SCA)

City of Cape Town v South African National Roads Authority Limited 2015 3 SA 386 (SCA)

Comair v the Minister of Public Enterprises 2014 5 SA 608 (GP)

Crawford v Washington 541 US 36 (2004)

D v National Society for the Prevention of Cruelty to Children HL [1977] 1 All ER 589

Dunn v Durham County Council [2013] 1 WLR 2305

Els v Minister of Safety and Security 1998 2 SACR 93 (NC)

Governing Body of Hoërskool Fochville v Centre for Child Law; In Re: Governing Body of Hoërskool Fochville v MEC Education Gauteng and Others 2014 6 SA 561 (GJ)

Gorfinkel v Gross Hendler & Frank 1987 3 SA 766 (C)

H v Fetal Assessment Centre 2015 2 SA 193 (CC)

KG v CB 2012 4 SA 136 (SCA)

Khala v Minister of Safety and Security 1994 4 SA 218 (W)

Makanjuola v Commissioner of Police of Metropolis [1992] 3 All ER 617

Midi Television (Pty) Ltd t/a e-tv v Director of Public Prosecutions (Western Cape) 2007 5 SA 540 (SCA)

Multichoice (Proprietary) Limited v National Prosecuting Authority, In Re; S v Pistorius, In Re; Media 24 Limited v Director of Public Prosecutions North Gauteng 2014 1 SACR 589 (GP)

Primedia Broadcasting (a Division of Primedia (Pty) Ltd) v Speaker of the National Assembly 2017 1 SA 572 (SCA)

Re B, R and C (Children) [2002] EWCA Civ 1825

Re (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755

Re D (Minors) (Adoption Reports: Confidentiality) [1995] 2 FLR 687

Re J (A Child: Disclosure) [2012] EWCA Civ 1204

Re M (A Minor) (1989) 88 LGR 841

S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC)

The Citizen 1978 (Pty) Ltd v McBride 2011 4 SA 191 (CC)

Van der Linde v Calitz 1967 2 SA 239 (A)

Legislation

Children's Act 38 of 2005

Constitution of the Republic of South Africa, 1996

Constitution of the United States of America: Sixth Amendment

Uniform Rules of Court in terms of the Supreme Court Act 59 of 1959




DOI: http://dx.doi.org/10.17159/1727-3781/2017/v20i0a2134

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