South Africa

South Africa[1] [print]

Last edited: November 2005

Summary and Analysis

South Africa ratified the Convention on the Rights of the Child [CRC] on July 16, 1995, effectively making the Convention binding domestically.[2]  Though the CRC’s authority is inferior to the Constitution and Acts of Parliament, according to a constitutional provision, courts must favor any reasonable interpretation of legislation that is consistent with international law.[3]  When South Africa ratified the African Charter on the Rights and Welfare of Children in January of 2000, the Charter came into force with a domestic authority equivalent to the CRC.  South Africa has a formal child protective system which has been developing over several decades.  Although extensive in comparison to some other jurisdictions, it is thought by some to be inadequate, as it was developed under apartheid and just before the HIV pandemic struck, when South Africa was a very different country.  The child protective system is comprised of various institutions, including Children’s Courts, the Department of Social Development (which, along with civil society partners, is responsible for implementing the law), a foster care system, and a specialized corps of professional representatives.   This system is largely governed by the Constitution of the Republic of South Africa, statutes and regulations, and case law.   

The Constitution guarantees children the right “to be protected from maltreatment, neglect, abuse or degradation.”[4]  In furtherance of this constitutional command, the Child Care Act of 1983 establishes children’s courts and provides for the appointment of commissioners of child welfare to adjudicate cases involving children in need of care.  Under the Child Care Act, a children’s court can investigate the possible removal of a child where ill-treatment or neglect is indicated, and children appearing before the court have the right to free legal representation appointed by the Legal Aid Board.  After the proceedings, the court may order the parents, guardians, or another party in the case to pay for the representation.  If a child wishes to choose a legal representative, he/she must pay for the representation.  The Constitution reinforces the child’s right to representation in Article 28(1)(h), which provides that all children have the right to free legal representation in any civil proceedings affecting them, “if substantial injustice would otherwise result.”[5]

Case law has also reinforced the child’s ability to express his/her viewpoint in civil proceedings.  McCall v McCall held that one of the factors to be used in determining the child’s best interest is the child’s preference.  Soller NO v G and Another held that the legal representative appointed under Article 28(1)(h) of the Constitution has the responsibility to argue for the child’s wishes in court.  It is not clear if legal representatives appointed under the Child Care Act have the same responsibilities.

The Children’s Bill has been proposed to replace the Child Care Act of 1983.   This bill provides children with the following rights:  the right to participate in proceedings, the right to be represented by a legal practitioner, assigned by the State and at state expense, “in civil proceedings affecting the child, if substantial injustice would otherwise result,”[6] the right to bring matters to court, the right to appoint a legal practitioner of his or her own choice at his or her own expense, and the right to request the court to appoint a legal representative.

Two criminal laws also play an important role in protecting children in need of care:  the Prevention of Family Violence Act of 1993 and the Domestic Violence Act of 1998.  The Prevention of Family Violence Act imposes an obligation to report ill-treatment of children, and The Domestic Violence Act provides for the issuing of protection orders with regard to domestic violence.  Under this Act, a minor may apply for such an order without the assistance of his/her guardian.[7]

Sources of Law (In Order of Authority)

Constitution

Constitution of the Republic of South Africa, No. 108 of 1996[8]

Article 28.  Children. 

(1) Every child has the right … (h) to 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; …

Statutes

Child Care Act, No. 74 of 1983 (as amended by Child Care Amendment Act, No. 96 of 1996) [9]

8A. Legal Representation

1)       A child may have legal representation at any stage of a proceeding under this Act.

2)       A children’s court shall inform a child who is capable of understanding, at the commencement of any proceeding, that he or she has the right to request legal representation at any stage of the proceeding.

3)       A children’s court may approve that a parent may appoint a legal practitioner for his or her child for any proceeding under this Act, should the children’s court consider it to be in the best interest of such child.

4)       A children’s court may, at the commencement of a proceeding or at any stage of the proceeding, order that legal representation be provided for a child at the expense of the state, should the children’s court consider it to be in the best interest of such child.

5)       a)      If a children’s court makes an order referred to in subsection (4), the clerk of the children’s court shall be responsible for requesting the legal aid officer in respect of the magisterial district concerned, to appoint a legal practitioner, in accordance with the legal aid guide determined by the Legal Aid Board, to represent the child.

b)       The Legal Aid Board, established under section 2 of the Legal Aid Act, 1969 (Act No. 22 of 1969), is designated to provide legal representation at the expense of the State pursuant to an order made by the children’s court in terms of subsection (4).

6)       After the appointment of a legal practitioner referred to in subsection (5), the children’s court shall hold an enquiry to establish–

a)       particulars relating to the financial circumstances of the child concerned;

b)       particulars relating to the financial circumstances of the parent or parents or guardian, as the case may be, of the child concerned;

c)       whether any other legal representation at the expense of the State is available or has been provided; and

d)       any other particulars which, in the opinion of the children’s court have to be taken into account.

7)       a)       After the children’s court has held an enquiry contemplated in subsection (6), it may order that the cost of the legal representation be recovered from–

i)         the parties or any one of the parties to the proceedings in question;

ii)        the parents or any one of the parents of the child concerned; or

iii)       the guardian of the child concerned.

b)       Prior to making an order in terms of paragraph (a), the children’s court shall have regard to any recommendation made by the legal representative appointed by the legal aid officer in terms of subsection (5) so as to make an appropriate order regarding the recovery of costs in terms of paragraph (a).

c)       The order in terms of paragraph (a) shall be deemed to be an order as to costs in favour of and recoverable by the Legal Aid Board.

International Law

Convention on the Rights of the Child, [10] ratified Jul. 16, 1995.

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Regional Agreements

African Charter on the Rights and Welfare of the Child,[11] signed Oct. 10, 1997, ratified Jan. 7, 2000.

Article 4.  Best Interests of the Child

…

2. In all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views, an opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings, and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate law.

Article 7: Freedom of Expression

Every child who is capable of communicating his or her own views shall be assured the rights to express his opinions freely in all matters and to disseminate his opinions subject to such restrictions as are prescribed by laws.

Regulations

Regulations Under the Child Care Act (1988)[12]

4A. Legal Representation

1)        Legal representation at the expense of the state shall be provided for a child who is involved in any proceedings under the Act, in terms of section 8A(5) of the Act, in the following circumstances:

a)        Where it is requested by the child who is capable of understanding;

b)      where it is recommended in a report by a social worker or an accredited social worker;

c)      where any other party besides the child will be legally represented in the proceedings;

d)      where it appears or is alleged that the child has been physically, emotionally or sexually assaulted, ill-treated or abused;

e)      where the child, a parent or guardian, a person in whose custody the child was immediately before the commencement of the proceedings, a foster parent or proposed foster parent, or an adoptive or proposed adoptive parent contests the placement recommendation of a social worker or of an accredited social worker who has furnished a report contemplated in section 14(2) of the Act of regulation 8(2), as the case may be;

f)       where two or more persons are each contesting in separate proceedings for the placement of the child in their custody;

g)       where the child is capable of understanding the nature and content of the proceedings, but differences in languages used by the court and the child prevent direct communication between the court and the child, a legal representative who speaks both the languages must, subject to paragraph (h), be provided;

h)      where a legal representative contemplated in paragraph (g) can not be provided, an alternative arrangement should be made, including the provision of an interpreter for the child;

i)        where there is reason to believe that any party to the proceedings or any witness intends to give false evidence or to withhold the truth from the court; and

j)       in any other situation where it appears that the child will benefit substantially from legal representation either as regards the proceedings themselves or as regards achieving in the proceedings the best possible outcome for the child.

2)      Where legal representation at the expense of the state is not provided for any child who is involved in any proceedings under the Act, in terms of section 8A(5) of the Act, the reasons for the decision of the children’s court not to order that such legal representation be provided for the child shall be entered in the minutes of the court proceedings.

Case Law

McCall v. McCall 1994[13]

Holding that one of the factors in determining the best interest of a child is the child’s preference, “if the Court is satisfied that in the particular circumstances the child’s preference should be taken into consideration,” and that if the child is mature enough to accurately express his/her own feelings or to make and intelligent judgment, “weight should be given to his/her expressed preference.”

Soller NO v. G and Another 2003[14]

Holding that the Family Advocate’s role is distinct from the role of the legal representative appointed under Article 28(1)(h) of the Constitution in that the Family Advocate acts as a mediator and a neutral medium of communication between family members, and the legal representative is, “squarely in the corner of the child and [has] the task of presenting and arguing the child’s wishes in Court,” applying adult insight and legal knowledge to the wishes, “giving the child a voice without merely being a mouthpiece.”

Local Contact Information

Carol Bower

Executive Director

Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN) National Chair: South African Society for the Prevention of Child Abuse and Neglect

Tel:  +27 (0)21 712 2330

Fax: +27 (0)21 712 2365

Cell: +27 (0)83 777 3793

E-mail: carol@rapcan.org.za

Web: www.rapcan.org.za

Physical address: D P Marais Centre, Main Road, Retreat

Postal address: Suite 87, Private Bag X12, Tokai 7966.

Additional Resources and Links

South African Department of Social Development:  http://www.welfare.gov.za/

The Child’s Rights Project:  http://www.communitylawcentre.org.za/children/

African Network for the Prevention and Protection against Child Abuse and Neglect: http://www.anppcan.org/

Centre for Child Law: http://childlawsa.com/index.asp?pgid=1

Children’s Institute http://web.uct.ac.za/depts/ci/index.htm

Kassan, Daksha Gaman, “How Can the Voice of the Child Be Adequately Heard in Family Law Proceedings?” thesis submitted to the Faculty of Law, University of the Western Cape: http://ww3.uwc.ac.za/docs/%20Library/Theses/Theses%202005%201st%20Grad/kassan_d_g.pdf

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[14] Soller NO v. G and Another, 2003 (5) SA 430 (W).