Constitutional Court of South Africa

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Children's rights


Why protect children's rights?

The inclusion in the Bill of Rights of a special section on the rights of the child was an important development for South African children, most of whom had suffered under apartheid for many years. Some had been detained without trial, tortured and assaulted; many faced discrimination in healthcare, education and other areas.

Children need special protection because they are among the most vulnerable members of society. They are dependent on others - their parents and families, or the state when these fail - for care and protection.

As a result, the drafters of our Constitution have made children's rights a priority - and have stated that the best interests of a child are the overriding concern when it comes to any matter affecting him or her.

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Section 28 - Children

Section 28 of the Bill of Rights, entitled "Children", says:

  1. Every child has the right to -
    1. a name and a nationality from birth;
    2. family care or parental care, or to appropriate alternative care when removed from the family environment;
    3. basic nutrition, shelter, basic health care services and social services;
    4. be protected from maltreatment, neglect, abuse or degradation;
    5. be protected from exploitative labour practices
    6. not be required or permitted to perform work or provide services that -
      1. are inappropriate for a person of that child's age; or
      2. place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development;
    7. not be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be -
      1. kept separately from detained persons over the age of 18 years; and
      2. is treated in a manner, and kept in conditions, that take account of the child's age;
    8. have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and
    9. not be used directly in armed conflict, and to be protected in times of armed conflict.
  2. A child's best interests are of paramount importance in every matter concerning the child.
  3. In this section 'child' means a person under the age of 18 years.

This section gives children the right to a name, citizenship and some form of care. Children need food and shelter, and should be protected from abuse, neglect and degradation. No child should work when under-age, or do work that would interfere with his or her education or development.

Children should be jailed only as a last resort and should not have to share a cell with adults. They should not take part in wars and should be protected during conflict.

The second sub-section, a very important clause, says a child's interests are the most important consideration in any matter concerning the child.

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Other rights

That the Bill of Rights has a section devoted to children does not mean that the rights in the others sections do not apply to them too. The sections that deal with equality, human dignity, religion and health - as well as many others - are especially relevant and also apply to children.

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Key Constitutional Court judgments

The Constitutional Court has handed down a number of judgments that, directly or indirectly, have affirmed children's rights.

This case involved six juveniles who had been sentenced to receive "moderate correction" of a number of strokes with a light cane in terms of section 294 of the Criminal Procedure Act of 1977.

The Constitutional Court had to decide whether the sentence of juvenile whipping was unconstitutional.

The Court declared corporal punishment unconstitutional on the ground that it violates dignity and it violates the right not to be treated or punished in a cruel, inhuman or degrading way. It found that juvenile whipping violated the dignity of the juvenile as well as that of the person administering the whipping.

The Constitutional Court declared section 294 unconstitutional. The effect of this is that whipping is no longer a punishment that the courts may impose.

  • Fraser v Children's Court, Pretoria North and other
    Read the case.
    Judgment date: 5 February 1997

Laurie Fraser was the unmarried father of a child put up for adoption by his former partner. The adoption application was granted by the Children's Court, but Fraser, who wanted to be able to adopt the child himself, applied to have it set aside.

The case concerned section 18(4)(d) of the Child Care Act of 1983, which required a Children's Court to obtain the consent of both parents before issuing an order for the adoption of a legitimate child, but dispensed with the need to obtain a father's consent for the adoption of his child born out of wedlock.

Legitimate children are those born of a marriage recognised by the state.

The Court held that this violated the right to equality. It discriminated against fathers in marriages contracted according to the rites of religions such as Islam and Hinduism, which were not recognised as marriages by the law.

But the Court said more consideration was needed before the section could be remedied and gave parliament two years to correct the defect.

  • Minister for Welfare and Population Development v Fitzpatrick and others
    Read the case
    Judgment date: 31 May 2000

Section 18(4)(f) of the Child Care Act of 1983, which prohibited the adoption of a child born in South Africa by people who were not South Africans, was held to be unconstitutional by the Cape High Court.

In the confirmation hearing in the Constitutional Court, Justice Goldstone held that the prohibition was inconsistent with section 28(2) of the Constitution, which required that the best interests of a child be paramount in every matter concerning the child.

The Court recognised that in some cases it might be in the best interests of a child born in South Africa to be adopted by non-South Africans. It confirmed the order of invalidity.

  • Christian Education South Africa v Minister of Education
    Read the case
    Judgment date: 18 August 2000

The question was whether Parliament, by prohibiting corporal punishment in all schools, had unconstitutionally limited the rights of parents of children in independent schools who, in line with their religious convictions, had consented to the "corporal correction" of their children by teachers.

An association of 196 Christian independent schools had argued that "corporal correction" was an integral part of the Christian ethos and that the prohibition imposed by section 10 of the Schools Act should be declared invalid.

Justice Sachs, on behalf of a unanimous court, assumed in the appellant's favour that religious and community rights had been limited. The question then was whether such limitation was justifiable in an open and democratic society.

The legislature had banned corporal punishment to protect schoolchildren from abuse. Such punishment had a special place in the ethos of this religious community, but its schools functioned in the public domainand the creation of uniform norms and standards was crucial to educational development.

the creation of uniform norms and standards was crucial to educational development. The Court also took into consideration the importance of the child's right to dignity and right to be free from all forms of violence.

Here parents were not being made to choose between obeying the law or following their conscience. They were being prevented from authorising teachers to fulfil what they regarded as their biblically ordained responsibilities.

The Court refused to grant an exemption that would allow corporal punishment in schools.

  • Government of RSA and others v Grootboom and others (Read the judgment)

    Judgment date: 4 October 2000

This case considered whether citizens could force the state to act positively to meet their social and economic (or "second-generation") rights.

In question was section 26 of the Constitution, which gave everyone the right of access to adequate housing, and section 28(1)(c), which afforded children the right to shelter.

Irene Grootboom, who brought the case, was one of 390 adults and 510 children living in appalling circumstances in Wallacedene informal settlement. The High Court had found that the children and, through them, their parents were entitled to shelter under section 28(1)(c).

The Constitutional Court, in a unanimous decision written by Justice Yacoob, noted that the Constitution obliged the state to act positively to help people living in deplorable conditions. It had to provide housing, healthcare, sufficient food and water, and social security to those unable to support themselves and their dependants.

The Court stressed that the rights in the Bill of Rights were inter-related. Human dignity, freedom and equality were denied to those without food, clothing or shelter.

The Constitution recognised that this was an extremely difficult task and did not oblige the state to go beyond its available resources or to realise these rights immediately. But the state did have a duty to give effect to these rights progressively and to put in place reasonable legislative and other measures to meet the right.

The programme in force in the area at the time fell short of this obligation. The Court ordered the state to provide relief for those desperate people who had not been catered for.

  • Minister of Health and others v Treatment Action Campaign and others
    Read the case
    Judgment date: 5 July 2002

The Treatment Action Campaign (TAC) and two other parties challenged the government's policy on the prevention of mother-to-child transmission of HIV - which permitted the use of Nevirapine at a limited number of pilot sites only. Nevirapine was to be provided free of charge to the South African government for a period of two years by its manufacturers.

The Constitutional Court said the question was whether the applicants had shown that the measures adopted by the government fell short of obligations under the Constitution.

The Court said conducting research did not justify delaying a comprehensive programme. The policy seriously affected a significant group of HIV-positive mothers and children who did not have access to the research sites and were effectively denied access to a potentially life-saving medical intervention.

The Court said provision of a single dose of nevirapine was essential as far as children were concerned. The needs of children were the most urgent and the state was obliged to ensure that children were accorded the protection contemplated by section 28 of the Bill of Rights.

The Court declared the policy unconstitutional and ordered the government to remove the restrictions on nevirapine and to permit and facilitate its use where medically indicated.

It also ordered that the government make provision for the training of counsellors and take reasonable measures to extend testing and counselling facilities.

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New legislation

The Bill of Rights is not the only instrument the law uses to guard children's rights. Legislation that provides specific protection for children includes:

  • the Child Care Act of 1983, which makes it a criminal offence if a person who has to maintain a child doesn't provide the child with clothes, housing and medical care;
  • the Basic Conditions of Employment Act of 1997, which makes it illegal to employ a child under 18;
  • the Domestic Violence Act of 1998, which defines different forms of domestic violence and explains how a child can get a protection order against the abuser; and
  • the Films and Publications Act of 1996, which protects children from exploitation in child pornography.

One example of new legislation passed in response to a Constitutional Court ruling - in this case, the Fraser judgment - is the Natural Fathers of Children Born out of Wedlock Act of 1997.

It gives natural unmarried fathers - including those whose marriages are not recognised by the state, for example Muslim and Hindu marriages - the statutory right to go to court to ask for access, custody or guardianship of their children. The interests of the children are seen as most important in deciding on custody or access to children.

The Children's Bill, which went before Parliament in 2003, is meant to replace the Child Care Act of 1983. It aims to provide a holistic approach to the rights of all children.

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