Johannesburg -
A landmark Constitutional Court ruling delivered this week has changed the law for multitudes of children who survive on state funding, both in the form of foster care grants and child support grants.
While the case before the court involved children who rely on foster care grants specifically, the judges took the matter further, delivering a ruling that will also have a positive impact on children who receive child care grants.
“It’s a double victory,” said Simon Kelsey, the attorney who took the case to the Constitutional Court.
The ruling, he added, gave effect to the Constitution, and would make a difference to the lives of many poor children in South Africa.
The case stemmed from a claim lodged against the RAF after Jeslin Shelaine Williams, now 27, Alfreda Kim Beyers, 22, and Elton Jason Beyers, 19, lost their mother.
The mother, Noelle Beyers, was killed in an accident in 2002.
Since their father had died previously, the maternal grandparents stepped in and were later formally appointed as foster parents, entitled to receive foster care grants.
The grants, however, ended up being the children’s biggest obstacle to their later claim from the RAF for compensation for loss of support.
Earlier this year curator Wayne Coughlan took the case to the Constitutional Court, arguing that the provision of the foster care grants was in fulfilment of the state’s Constitutional obligations in respect of the children. It could therefore not be said that the grants, as well as compensation for loss of support, amounted to double compensation.
The Centre for Child Law joined the proceedings as amicus curiae (friend of the court), urging the court to also extend the principle to child support grants.
In a judgment handed down this week, the Constitutional Court found that an award for damages for loss of support was not a substitute for foster parenting, saying that there was no basis to deprive a child of compensation for loss of support because they were in foster care.
“A foster child grant is not paid to the child but to the foster parent. It is the foster parent who is entitled to receive the grant… It forms part of the patrimony of the foster parent. The foster parent may spend it in the manner she wishes, provided it is in the best interests of the child.
“The child has no claim to it,” the court pointed out.
Payment for loss of support, however, was payable to the child in order to compensate the child for the loss suffered. “It amounts to an income replacement resulting from the death of the parent as a result of a motor vehicle accident,” the court said, adding that it did not constitute double compensation.
“… the nature and purpose of the grant is different from compensation. These grants arise from the constitutional obligations of the State to provide for children in need of care. They are not paid to the children and they are not predicated on the death of a parent.”
Pretoria News Weekend