Cape Town - Two brothers, who were orphaned after their mother lost her battle with cancer, have been placed in the legal care of their testamentary guardians.
This despite having lived with their maternal aunt and uncle after their mother’s passing.
The custodial battle for the boys, who also suffered the death of their father four years prior to their mother’s passing, was heard in the Fast Lane Court of the Western Cape High Court recently.
This was in an attempt to ensure the eldest son, who suffered a rugby injury, would be added to a medical aid so he could have a leg operation.
The mother had executed a last will and testament in 2021.
In it, she appointed the applicants – a married, Somerset West couple –as the testamentary guardians of her teenage sons, aged 17 and 13.
By 2022, they had adopted the roles of uncle and aunt to the children.
However, after the mother’s passing while in palliative care, a social worker conducted a risk and safety assessment and found the children to be in need of care and protection as defined in section 150 of the Children’s Act (“the Act”) and were placed in the care of “safety parents” – the maternal aunt and uncle, a married couple living in Caledon – for 90 days.
“Further investigations by the social worker ensued and Children’s Court proceedings were opened, apparently unknown to the applicants so that when they, as the testamentary guardians, were due to collect the children after the funeral, issues arose between the children’s maternal family and the applicants (Somerset West couple).
“The Children’s Court placed the children in the temporary safety of the first and second respondents (Caledon couple).
"As an aside, the indication in the main application was that the social worker and/or the Children’s Court were not informed that the applicants were the guardians of her children,” the judgment read.
The litigation has included discrepancies the couple had with adding the children to their medical aid, especially after the older son suffered an orthopaedic injury during a rugby match in April this year.
"A medical certificate issued by a medical practitioner at Helderberg District Hospital on 2 May declared him unfit for eight days.
“He was disallowed from participating in sport for approximately a year unless advised otherwise.
“From the evidence it would seem that J suffered an injury to his cruciate ligament and required the use of a leg brace.
"The first applicant explains that a quotation for an MRI scan is over R15 000 but eventually Winelands Radiology charged R5 416 as the specialist agreed to conduct the MRI scan through the Sports Science Institute.
“Furthermore, J’s mobility is limited and he may have to wait up to three months for surgery at Tygerberg Hospital.
"In addition, the applicants are concerned about his education and health as he is currently in Matric and has missed school due to being indisposed as a result of the injury sustained,” the judgment read.
Dealing with the medical aid scheme terminology discrepancy, Judge Mas-udah Pangarker said: “The medical scheme’s requirement that the child must be in the 'legal custody' of the principal member, there can be no uncertainty that the applicants were awarded care, and thus custody, by the High Court.”