Harmonisation of national laws and policies: South Africa

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Harmonisation of national laws and policies: South Africa Powered By Docstoc
					Harmonisation of laws relating to
              children

           South Africa




     Prepared by Julia Sloth-Nielsen




                           The African Child Policy Forum
                    PO Box 1179, Addis Ababa, Ethiopia
                    Tel: +251 (0)116 62 81 92/ 96/ 97
                             Fax: +251 (0)116 62 82 00
                              www.africanchildforum.org
                                    www.africanchild.info



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Table of contents

1. Introduction and overview ............................................................................................. 3
1.1 Definition of a child ..................................................................................................... 9
1.2 Right to a name and nationality and birth registration ........................................... 12
1.3 Refugee and migrant children .................................................................................. 13
2. The right to know parents, adoption, orphans and vulnerable children, and
alternative care ................................................................................................................ 15
2.1 The best interests of the child, child welfare and protection, including child
abuse, protection of children from violence, and influence of customary law and
practice ............................................................................................................................. 20
3. Health, education and social security……………………………………………………………….27
3.1 Health ......................................................................................................................... 27
3.2 Education ................................................................................................................... 30
3.2 Social security............................................................................................................ 35
4. Child justice .................................................................................................................. 38
5. International and regional treaties ............................................................................. 46
6. Identification of best practices .................................................................................. 50
7. Gaps and recommendations ...................................................................................... 51
Bibliography ...................................................................................................................... 54
Annex: About the author .................................................................................................. 60




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           1. Introduction and overview

South Africa emerged from 40 years of international isolation with the ending of apartheid in
1994 and the first democratic elections. Ushered in by the interim constitution of 1993, a
process of redrafting of that document ensued by a multi party Constitutional Assembly,
resulting in the finalisation of the Constitution of the Republic of South Africa, Act 108 of
1996.


From a legal perspective, the Constitution is significant in a number of respects. First, the Bill
of Rights contained in Chapter 2 provides a wide array of social, economic, cultural and civil
and political rights, and furthermore makes these rights justiciable in courts of law. In
particular, the justiciability of the socio-economic rights provisions has been confirmed on a
number of occasions by courts, notably the Constitutional Court which forms the apex of the
Court structure (see for example, the Certification judgment, the Grootboom judgment and
the Treatment Action Campaign judgment, the latter two of which are discussed further
below.)


Second, the constitution is remarkable for the inclusion of a clause dedicated to children’s
rights. During the negotiations leading up to the adoption of the interim constitution, it had
been noted that earlier drafts devoted much attention to the rights of prisoners and persons
accused of offences, whilst little had been said about children (Sloth-Nielsen, 1996). This led
to an approach to the children’s rights advocacy sector to propose suggestions for a
constitutional clause relating to children. Clause 30 of the Interim Constitution enshrined
some of the key principles of the UN Convention on the Rights of the Child (1989), and
provided an important basis for reconsideration when the final Constitution was drafted.
Section 28 of the 1996 (final) Constitution elaborated the rights accorded to children, and
consequently contains more detailed provisions than its predecessor. It has been noted on
many occasions that until recently, South Africa had the most elaborate children’s rights
constitutional provisions of any country in the world.1



1   More elaborate provisions were drafted in 2005 relating to the draft constitution of Kenya (which
    was not approved) and that of Zambia. See in general J Sloth-Nielsen ‘Strengthening the protection
    of children’s rights in African context’ unpublished paper presented at the international conference
    on children’s rights, Ghent, 18-19 May 2006


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Section 28 provides that:

      1. Every child has the right
               a. to a name and a nationality from birth
               b. to family care or parental care, or to appropriate alternative care
                    when removed from the family environment
               c. to basic nutrition, shelter, basic health care services and social
                    services
               d. to be protected from maltreatment, neglect, abuse or degradation
               e. to be protected from exploitative labour practices
               f.   not to be required or permitted to perform work or provide services
                    that
                       i.   are inappropriate for a person of that child's age
                      ii.   place at risk the child's well-being, education, physical or
                            mental health or spiritual, moral or social development
               g. not to 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
                       i.   kept separately from detained persons over the age of 18
                            years
                      ii.   treated in a manner, and kept in conditions, that take account
                            of the child's age
               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
               i.   Not to 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 years2

Children’s rights litigation based on the contents of these (and other) provisions has ensued
in the decade since the adoption of the constitution. Writing in 2002, Sloth-Nielsen noted

2   S 28 of the Constitution of the Republic of South Africa 108 of 1996 (‘the final Constitution’)


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that although section 28 had surfaced in a number of constitutional cases, that frequently
the section had been adduced by adults in order to further their own claims and interests,
rather than actions being brought by or solely on behalf of children themselves.3 Since then,
however, children’s rights litigation to advance the cause of individual children, or groups of
children, has become a more frequent occurrence, mainly due to the involvement of public
interest litigators with experience in children’s rights and gender related issues.4 It is thus
common place now for child rights- oriented cases to feature in South African courts, and
significant advances in harmonizing South Africa and international law have taken place
through judicial decisions (for instance in relation to the rights of the girl child to inherit, the
rights of the child to protection from corporal punishment within the school system, and the
right to the child born out of wedlock to maintenance from paternal grandparents).5


Third, the inclusion of a constitutional framework for the protection of children’s rights laid
the basis for a revision of many laws, including those relating specifically to children, and
laws affecting children less centrally. Examples of the latter are the Births and Deaths
Registration Act 1996, the Citizenship Act 1996 and the Basic Conditions of Employment Act,
1997. The two primary examples of the former relate to child protection and child justice,
and these are dealt with far more fully in sections 3, 4 and 6 below.


Supplementing constitutional provisions are the international treaties in the sphere of child
law that South African has ratified. This first treaty of all to be ratified by South Africa after
she rejoined the international community was the Convention on the Rights of the Child, on
16 June 1995. Second, the Hague Convention on International Child Abduction was ratified
and brought into effect in 1996, the African Charter on the Rights and Welfare of the Child in
January 2002, and the ratification of the Hague Convention on Inter-country Adoption, the
ILO Convention 182 on the Elimination of the Worst Forms of Child Labour and the UN
Protocol on Trafficking of Women and Children provide further instances of South Africa’s
commitment to children at the international law level.



3 J Sloth-Nielsen 'Children's rights in the South African Courts: An overview since ratification of the UN
   Convention on the Rights of the Child' (2002) 10 The International Journal of Children's Rights
   pp137-56
4 The Centre for Child Law at the University of Pretoria commenced operation in 2003, following the

   example of the Cape Town based Women’s Legal Centre. (See www.childlawsa.com)
5 For an example of the impact of judicial decision making in the juvenile justice sphere, see J Sloth-

   Nielsen ‘Developing a child justice system through judicial practice’ (2005) Article 40, volume 7,
   No.4, pp1-3


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International treaties are, in terms of South Africa law, not generally self-executing, but have
to be provided for in domestic law in order to have effect.6 However, there are further
considerations which entail that international law is accorded heightened relevance, even
when it has not been incorporated in South Africa law. The children’s rights clause - the
result of powerful submissions based on the CRC7 - incorporates the key concepts found in
the CRC so that interpretations of the children’s rights clause would refer to the more
extensive provisions in international law.8 Since the children’s rights that have been
encapsulated in the Constitution are justiciable in the courts, it can also be concluded that
the CRC (in particular) has acquired legal significance via the Constitution.9

In addition, the Constitution contains specific provisions which require the courts to consider
international law in their deliberations. The first of these is s 39(1) (b) which provides that
the courts ‘must consider’ international law - binding and non-binding - in interpreting the Bill
of Rights. In relation to socio-economic rights, for instance, this would include: the
Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the
Child, the International Covenant on Economic Social and Cultural Rights, the African
Charter on Human and People’s Rights, as well as soft law, such as General Comments,
Country Reports and other documents produced by the Committees in charge of
implementing these treaties,10 and decisions of tribunals dealing with comparable
instruments. The value attached to international human rights law will vary. A binding
international law agreement like the Convention on the Rights of the Child and the African
Charter should in principle be directly applicable in a Court whereas a non-binding agreement




6 J Sloth-Nielsen 'Children's rights in the South African Courts: An overview since ratification of the UN
   Convention on the Rights of the Child' (2002) 10 The International Journal of Children's Rights
   pp137-56 states is one that is regulated not by international law but by municipal law. South Africa
   follows a dualist system and section 231(4) of the Constitution provides that ‘[a]ny international
   agreement becomes law in the Republic when it that ‘the question as to whether a provision in an
   international agreement is self-executing in any particular country is enacted into law by national
   legislation; but a self-executing provision of an agreement that has been approved by Parliament is
   law in the Republic of South Africa unless it is inconsistent with the Constitution or an Act of
   Parliament’
7 South Africa had not yet ratified ACRWC, nor was it then in operation. However, references to ACRWC

   have emerged in case law
8 L du Plessis & H Corder 'The genesis of the sections entrenching specific rights' in L du Plessis et al

   (eds.) Understanding South Africa's Transitional Bill of Rights (1994) 84, 98. See also Constitutional
   Assembly Explanatory Memorandum: Draft Bill of Rights (October 1995) 159
9 Sloth-Nielsen (note 5 above) p139
10 Despite these sources being non-binding international law, they are highly persuasive because they

   contain interpretations of the rights by the official body charged with implementation


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is technically only of influential value.11 In any event, the duty to ‘consider’ international law
does not mean it has to be applied but it means that at the very least the court must take
note of the provisions and, should it choose not to apply it, give reasons why.12 Further, s
233 of the South African Constitution instructs courts to afford preference to an
interpretation of statutory law that is ‘consistent with international law’ whenever such an
interpretation would be reasonable


The inclusion of justiciable children’s rights at the constitutional level can certainly be
regarded as a best practice, more so when those rights extend beyond civil and political
rights, and where they can affect socio-economic and cultural rights in relation to children.
However, the South African jurisprudence on the elaboration of the meaning of children’s
socio economic rights has been less favourable than children’s rights activists might have
hoped, and it is widely thought that the Constitutional Court has been careful to hand down
decisions which do not dictate to the executive how government monies should be spent, as
this might infringe the upon the divide between the three arms of government (executive,
legislative and judicial). A note of caution should thus accompany the best practice of
enshrining socio-economic rights for children in African constitutions.13


Further contextual information concerning South Africa relates to the deep legacy left by
apartheid. Whilst not a deeply poor country, in fact rating as a middle income country,
alongside Nigeria the biggest economy on the continent, South Africa is nevertheless plagued
by severe income disparity, often exacerbated by the rural/urban divide. Since half of the
country’s inhabitants are children from a population of 42 million people, it is widely
recognised that poverty has a disproportionate impact on the young. The State has adopted
various measures, including some enshrined in legislation, to redress the poverty suffered by
children, and a fuller assessment of the progress and successes of some of these initiatives
will be discussed more fully below.


The extent of child poverty is illustrated by the following data:




11 See the references to International Law in S v Kwalase (per van Heerden J) and Government of the
   Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) (per Yacoob J)
12 Ibid.
13 See for further elaboration, J Sloth-Nielsen ‘Measures to strengthen children’s rights in the

   Constitution of Sudan’, Save the Children Sweden (Kenya office) 2005


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     o   Fifty nine percent of children live in a household with at least one adult who is
         employed. The other 41 percent, or 7.3 million children from birth to 18, do not live
         with an employed person

     o   Forty three 43 percent of children live in households that can only access an
         inadequate supply of water. This equates to 7.8 million children

     o   Infant mortality rate (2000) = 59.1 per 1,000 live births nationally

     o   Nationally, 49 percent of children make use of inadequate sanitation facilities (2004
         data). Inadequate sanitation refers to chemical toilets, pit latrines, bucket, no toilets,
         and a small group of facilities that are unspecified14

South African families and children are in addition being deeply affected by HIV/ AIDS, which
has seriously implications for household income security and spending patterns. An
estimated 5.5 million South Africans are HIV-positive, second only to the HIV positive
population of India.15 Not only are children vulnerable to being orphaned, or raised in child-
headed households, but an increasing body of research is detailing the broader social
implications for children of a large scale escalation in HIV/ AIDS in society. These may
include vulnerability to dropping out of school, increased risk of sexual abuse, vulnerability to
becoming involved in child labour, dispossession from family property, and food deprivation
consequent upon other family members’ illness and death.16


Children in South Africa, as in most African countries, are not necessarily only affected by the
operation of civil law (either common law, legislation or court- made legal rules). There are a
variety of religious and customary laws and practices which also govern the lives of a large
percentage of South African children. The co-existence of different systems of personal law
having been expressly recognised in the 1996 Constitution, the relevant provision (section
15) nevertheless provides that the freedom to follow religious and customary law is granted
only to the extent that those laws do not conflict with fundamental rights enshrined in the
Constitution. A number of issues affecting children arise in this regard, notably rights of


14 D Bradshaw, N Nannan, R Laubscher, P Groenewald, J Joubert, B Nojilana, R Norman, D Pieterse
   and M Schneider 2004 South African National Burden of Disease Study 2000: Estimates of
   Provincial Mortality in Children's Institute, Children Count www.childrencount.ci.org.za
15 Mail and Guardian Week 2 June – 9 June 2006
16 See J Sloth-Nielsen ‘Child Headed Households: a guide to laws, policy and social advocacy’ Socio-

   economic Rights Project, Community Law Centre, University of the Western Cape, 2004; J Sloth-
   Nielsen ‘Of newborns and nubiles: challenges to children’s rights in the era of HIV/ AIDS’ 2005
   International Journal on Children’s Rights pp73-85


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succession, and in particular, the rights of the girl child to inherit under customary law,
issues relating to who bears the obligation to maintain children after the dissolution of the
union of their parents, the rights of children born out of wedlock, the age of marriage and the
conditions under which marriage can occur under customary and religious law, and access
and custody rights under Muslim personal law. Further contentious issues regarding cultural
practices are male circumcision, virginity testing of girls, and the possible increasing use of
female genital mutilation as South Africa is increasingly host to a growing migrant community
from elsewhere in Africa.17 Some of these will be touched on below.


1.1 Definition of a child
Although the Constitution provides for childhood to end at 18 (section 28(3)), there is as yet
no uniformity legally regarding the definition of a child in all areas of the law. As regards the
age of majority (which governs largely private law aspects of children and their relationship
with society), the Age of Majority Act 51 of 1992 determines that childhood ends at 21 years.
The Children’s Act 38 of 2005 (passed by Parliament on 14 December 2005, hereafter the
Children’s Act) will, however, provide for the end of majority to be 18 years, once
promulgated.18 The Correctional Services Act 111 of 1998 (in operation from 31 July 2004),
replaces the previous definition of ‘juvenile’ (who was previously defined as an offender aged
below 21 years) with a CRC and ACRWC compliant definition of a child as being aged below
18 years. The Child Justice Bill 49 of 2002, which has not been finalized by Parliament at the
time of writing, seeks to provide a separate juvenile justice system for children aged under
18 years, with a proposed minimum age of criminal capacity commencing at 10 years. The
present minimum age of criminal capacity is derived from Roman law, and it is low: 7 years
of age.


Notwithstanding the above, a wide range of age limits differentiating ages at which
capacities commence appear in various legal provisions. The minimum age for marriage, for
instance, is 16 for girls and 18 for boys, and can be even lower than this with ministerial




17 The extent of the non-citizen community is unknown, given that it comprises both legal refugees,
   applicants for refugee status, and illegal immigrants. Recently it was estimated that at least 2
   million immigrants from Zimbabwe are to be found in the northern parts of the country (HSRC
   Workshop on the State of the Nation, Durban, 8 – 10 March 2006)
18 See section 17 in this regard. The process of development of the Children’s Act 38 of 2005 is

   discussed in greater detail below


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consent (see the Marriage Act, 1961). In contrast, the ACRWC provides for a raised minimum
threshold of 18 years for marriage.19


Similarly, children aged 14 and above may consent to medical treatment,20 whilst according
to the Choice on Termination of Pregnancy Act (92 of 1996); a girl of any age may decide to
terminate a pregnancy without parental consent.21 The statutory age for consent to sexual
intercourse for girls is 16 years, and a girl below 12 years is deemed irrebuttably unable to
consent to sexual intercourse, meaning that intercourse with a child aged below 12 years is
rape. Social grants may, in terms of recent legislation (the Social Assistance Act, 13 of 2004,
not yet in operation), be paid to children of 16 years who qualify for one of the grants
provided for there – such as the child support grant discussed further below. The previous
legislative provision provided for a minimum age of 18 years for any grant recipient, but
Parliament agreed to a lower age in view of the increasing phenomenon of child- headed
households, where older siblings have had to assume responsibility for younger siblings in
the family and where these older siblings would otherwise be excluded from formal state
support. However, 16 being the age at which one can apply for an identity document, and the
state grant system being predicated on proof of identity via this means (to reduce fraud and
corruption), the legislature was not prepared to lower the age for grant recipients below 16
years.


The rights of the child to participate in matter affecting him or her in accordance with the
child’s evolving age and maturity – as opposed to fixed age parameters - is not expressly
captured in South African law. However, various enabling provisions do permit (in an ad hoc
fashion) regard to be had to the views of children, for instance in divorce proceedings, and
legislatively speaking, as regards Hague Convention proceedings concerning the return of an
abducted child to the place where he or she was habitually resident. The Children’s Act 38 of
2005 provides expressly for children’s rights to participate in an appropriate way in regard to
any matter concerning such child and to have any views expressed by the child taken into




19 D Chirwa ‘The merits and demerits of the African Charter on the Rights and Welfare of the Child’
   (2002) 10 International Journal on Children’s Rights p157
20 Although the Children’s Act 38 of 2005, once enacted, will lower this age to 12 years, a response to

   the widespread growth of HIV/ AIDS in South Africa, and the concomitant desire to ensure greater
   access to HIV testing and treatment
21 Chapter 27 ‘Children’ in J De Waal, I Currie and G Erasmus ‘The Bill of Rights Handbook’ (2 nd

   edition) Juta and Co (2005)


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consideration. This provision (section 10) applies to children of such an age, maturity and
stage of development to be able to participate.


Although the Constitution provides for legal representation of children in civil proceedings at
state expense in instances where substantial injustice might otherwise result (section 28 (1)
(h)), implementation of this section across the civil court system has been extremely
problematic over the last decade. Despite detailed amendments to the Child Care Act
effected in 1996 to give effect to children’s rights to legal representation in children’s court
proceedings where their care and protection needs are at stake, the amendment was not
brought into effect, evidently due to financial constraints and a lack of clarity as to which
Department (Justice or Social Development) would bear the fiscal burden of providing such
legal representation. In several divorce cases,22 High Courts have ordered independent legal
representation for affected children, but this has been ad hoc, and in one notable instance, a
court rescinded its order in this regard due to a lack of procedural mechanisms for
organising such legal representation, and because of the financial issues involved.23


The provisions relating to legal representation of children in the Children’s Act 38 of 2005
can be regarded as being wholly inadequate in the light of the constitutional imperative.
Section 55 provides merely that where a children’s court is of the opinion that it would be in
the best interests of the child to have legal representation, the court must refer the matter to
the Legal Aid Board as referred to in section 2 of the Legal Aid Act (22 of 1969). The Court is
neither required, in every instance or in specific instances (such as where the person from
whose care the child is being removed enjoys legal representation), to consider whether legal
representation should be obtained, nor are any further guidelines provided.24 The provision is
at best a minimal effort to comply with the provisions of Article 12 (2) of the CRC. Child legal
representation in criminal proceedings is discussed in section 6 (Child Justice) below.




22  See, for instance, Soller NO and another v G 2003 (5) SA 430 (WLD), also discussed in D Kassan
   ‘The Child’s Right to Voice in Divorce Proceedings’ unpublished LLM dissertation (cum Laude),
   University of the Western Cape, 2004
23 Ibid.
24 For a substantive discussion of this area, see J Sloth-Nielsen and B Van Heerden ‘Proposed

   Amendments to the Child Care Act in the context of Constitutional and International Law
   Developments in South Africa 1996 (12) South African Journal on Human Rights p247, and FN Zaal
   and A Skelton ‘Providing Effective Representation for Children in a new Constitutional Era: Lawyers
   in the Criminal and Children’s Courts’ 1998 (14) South African Journal on Human Rights p539, and
   Kassan (note 22 above)


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1.2 Right to a name and nationality and birth registration
The Births and Deaths Registration Act 51 of 1992, as amended, requires that notice of a
child’s birth must be given to an official in the Department of Home Affairs within 30 days of
a child’s birth. The child must have a name and a surname in order to be registered.25 Birth
registration is a compulsory requirement for access to child-related grants, as discussed
elsewhere below. At present, many children’s births are not registered, although a protracted
drive to register children has been underway in this millennium, as the roll-out of the child
support grant has gained momentum, as payment of this grant requires registration of births
and possession of proper identity documents.26


Given that the right to a name is associated with the right to have that name registered, it
has been recognized that section 28(1) (a) of the Constitution includes the right to have
one’s birth officially recognised and registered by the state.27 This is provided for in South
African municipal legislation, in so far as section 9(6) of the Births and Deaths Registration
Act 51 of 1992 provides that no person’s birth shall be registered unless a forename and
surname have been assigned to him or her. Amending legislation enacted in 2002 provides
that a child may be assigned the surname of either the father or of the mother of the child, or
the surnames of both joined together as a double-barrelled surname (section 9(2)), save
where the child is born out of wedlock.


To give effect to any claim to nationality, also guaranteed the child under section 28(1)(a) of
the Constitution, citizenship laws come into play, and, where the child qualifies for South
African citizenship under the South African Citizenship Act 88 of 1995, his or her nationality
would then be assured. However, difficulties may occur where a child does not qualify for
South African citizenship, and, more so, when such child’s claim to another nationality is
unclear. Keightley28 argues that South African law in its present form sufficiently addresses
the risk of children of foreign nationals who are born in South Africa being rendered
stateless.




25 ‘Age and Capacity’ in Lawyers for Human Rights ‘Children and the Law’ (2nd ed., 2004) p61
26 This is discussed further below
27 J Sloth-Nielsen ‘Children’ in D Davis and H Cheadle ‘The Constitution: the Bill of Rights’ (2nd edition)

   Juta and Co publishers, 2005
28 R Keightley ‘The child’s right to nationality and the acquisition of citizenship in South African Law’

   1998 (14) South African Journal on Human Rights 411 at 412-3


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1.3 Refugee and migrant children
A range of legislation concerning non-nationals, immigration and refugees has appeared on
the statute book recently,29 with some provisions affecting children. In addition, case law has
also developed in regard to certain issues concerning non- national children. In 2004, two
cases were brought on an urgent basis challenging the impending deportation of foreign
unaccompanied children where no arrangements for their proper care in the country of origin
had been made, and their best interests were threatened. It was ordered that children’s
court (welfare) inquiries into their care and well-being be opened, and the deportation
procedure halted.30


In Khosa and others v Minister of Social Development and others31 an issue at stake was the
criteria governing eligibility for receiving the child support grant and a care dependency grant,
as well as old age pensions, payable in terms of the Social Assistance Act 59 of 1992,32 as
amended by the Welfare Laws Amendment Act 106 of 1997.33 The applicants were
Mozambican citizens who had fled that country during civil conflict in the 1980’s and who
had resided in South Africa since then. The beneficiary children were, however, born in South
Africa and enjoyed South African citizenship. But for the fact that the applicants (parents)
were non- South African citizens, both they and their children would otherwise qualify for
social assistance. They had, however, been refused the grants concerned on the basis that
they were not South African citizens as required by the Act. The constitutionality of the
relevant provisions was therefore challenged as an infringement of the children’s rights
under section 28 as well as an infringement of equality rights under section 9 of the
Constitution. The Constitutional Court noted that social grants are targeted at vulnerable
people in order to realise Constitutional objectives and in line with international obligations.34
It was emphasised that basic needs have to be met to ensure that society values the



29 See, for example, the Immigration Act 13 of 2004, the Refugees Act 130 of 1998, and A van den
   Burg ‘An examination of the extent to which South Africa is meeting its legal obligations with regard
   to the protection of undocumented foreign migrant children’ unpublished LLM thesis, University of
   the Western Cape, 2006; ‘Refugee Children’ in Lawyers for Human Rights ‘Children and the Law’ 2 nd
   edition (2004) pp205-220
30 The cases are described in vol 1 (1) (2004) Child Law Matters (Centre for Child Law, University of

   Pretoria), also available at www.childlawsa.com
31 CCT 12/03
32 This legislation will be replaced by the Social Security Act 13 of 2004 when it is promulgated.
33 The case also concerned eligibility for old age pensions.
34 Khosa at para 51 The Court unfortunately does not specify to which international law obligations it

   refers.


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fundamental dignity of the people.35 The Court found that the discrimination was unfair and
offended against a person’s dignity. In this regard, the Court pointed out that the Constitution
mandates special protection for children and that the denial of support infringes on their
rights.36 The cost of including the affected groups was small in comparison to the overall
amount that was allocated to grants;37 therefore the Court ordered that the old age pension
and the child support grant should be available to permanent residents too.


The original version of the Children’s Bill (70 of 2003) contained an elaboration of further
protections for non-national children. These were, as pointed out below, excised from the
final text because the Department of Home Affairs said that this was their area of legislative
competence, rather than falling to the domain of the Department of Social Development. The
lacuna created by the omission has been trenchantly criticised.38


As a general proposition, the claim can be substantiated that South African law does not
currently adequately protect the fundamental rights of non-national and non-citizen children
in accordance with the prescripts of CRC which require the protections of that instrument to
be afforded to all children in a territory on the basis of non-discrimination (Article 2).39 This
point affects law, policy and practice, and considerable scope for improvement exists,
especially given the patent increase in the numbers of foreign migrant children entering the
country (these numbers, and a break down of which children are accompanied by parents or
care-givers and which not, are a matter for speculation as detailed data is not available.
However, it was recently announced that more than two million people were deported from
South Africa by the Department of Home Affairs during 2005). The point has been made that
children who are non-nationals suffer discrimination in a variety of ways that affects their
survival and well-being, including being denied access to education, to health facilities, to
social security and to social services.40




35 Ibid para 52
36 Ibid para 86
37 Ibid para 62
38 Van den Burg (note 29 above)
39 This point is eloquently argued by A van den Burg ‘An examination of the extent to which South

   Africa is meeting its legal obligations with regard to the protection of undocumented foreign migrant
   children’ LLM thesis, University of the Western Cape, 2006
40 Van der Burg, Ibid. See, too, Chapter 12 ‘Refugee and migrant children’ in Children and the Law

   (Lawyers for Human Rights, 2nd edition 2005) pp205-220


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2. The right to know parents, adoption, orphans and vulnerable children,
and alternative care

The South African Constitution contains no direct right to family life, although this has been
‘read into’ the right to dignity in a number of signal Constitutional cases, including cases
concerning children.41 The current provisions of the Child Care Act 71 of 1983 (due in future
to be replaced by the Children’s Act 38 of 2005) are premised on a system of closed
adoptions, which do not allow adopted children to have access to records concerning their
birth parentage before the age of 18 years. The Children’s Act will, however, introduce
voluntary ‘open’ adoptions, to be effected by the entering into of a post adoption agreement
prior to the adoption order being granted, which can provide for communication between
birth parents and the adopted child, visitation and possible disclosure of medical and other
information about the child subsequent to the adoption taking effect (section 234 of the
Children’s Act). As a general point, though, the adoption provisions do not envisage providing
for the unfettered rights of adopted children to know their birth parents, in the interests of
protection of the privacy of biological parents, and to encourage permanent placement of
children via the adoption process.


In 2005 there were only approximately 3000 adoptions in South Africa as a whole, including
so-called step-parent adoptions (where a step-parent wishes to form a permanent legal
relationship with a biological child of his or her legal partner). By contrast, some 270 000
children were receiving foster care grants in 2005,42 indicating a policy disjuncture between
foster care placements, which are premised on the temporary care of ‘at risk’ children, and
adoption as a permanent legal placement. This is, however, less occasioned by cultural
issues (some communities being traditionally reluctant to regard adoption as a viable and
culturally appropriate way of severing family ties and establishing new family units), as it has


41  See, for example, Dawood v Minister of Home Affairs, 2000 (3) SA 936 (CC). In J and anon v
   Minister of Home Affairs 2003 (5) BCLR 463 (CC), the applicants brought a constitutional challenge
   to section 5 of the Children’ Status Act 82 of 1987. They were respectively the birth mother and the
   biological mother (via artificial insemination of the birth mother using her ova and anonymous
   sperm donation) of twins, and were cohabiting in a same sex life partnership. They wished to both
   be registered as ‘parents’ of the children, which the Department of Home Affairs had refused to do.
   Upholding an order declaring the relevant section unconstitutional, the Constitutional Court
   premised it’s decision on children’s rights in the context of family life, and mentioned too the
   relationships of children within the extended family, not for the first time in constitutional
   jurisprudence
42 M Jacobs, M Shung King and C Smith ‘Child Gauge 2005’ Children’s Institute, Cape Town, 2005,

   p56


                                                                                                     15
to do with the fact that a foster care grant in the not insubstantial amount of R780 per
month is payable to a foster parent, whilst no fiscal support is available for prospective
adoptive parents. Further to this, increasing the take-up rate of the foster care grant has
been a key policy response to the escalating numbers of children without adequate parental
care due to the HIV/Aids phenomenon.43 The sustainability and perverse disincentive to
promoting the care of children within parental and family context has, however, been
highlighted, since the amounts payable for foster care grants exceed by a factor of four (4)
the amount payable as a child support grant to the primary care-giver of a children aged
below 14 years. [The current amount payable as a child support grant to the primary care-
giver of a child under the age of 14 years is R190, or approximately US$30.]44


The South African Law Reform Commission, in its Report on the Review of the Child Care Act
(2002), sought to address the anomalies related to grants (or non-grants) linked to different
forms of care arrangements relating to children by including a chapter on grants, with a wider
array of possible support arrangements (for kinship carers, and for adoptive families in need,
for instance). However, at the time of the Parliamentary process relating to the Children’s Bill,
the development of legislation to ‘outsource’ the payment of social security generally,45 and
further new legislation to update the social security laws, was well underway. The splitting off
of children’s social security from this process and it’s inclusion in the Children’s Bill did not
therefore attract Departmental or Parliamentary support. The recently enacted Social
Assistance Act, 13 of 2004, does not deviate substantially as regards the forms of grants
available at present; hence no financial assistance to promote adoption seems forthcoming.
The regulations to the Social Assistance Act are, however, still awaited, and these will provide
the detail necessary to understand the administration of the grants system.


As regards the residential care system, mention must be made of the fact that South Africa
has a long history of the outsourcing of the provision of welfare services, dating back more
than 70 years.46 This policy was based on the notion that families and communities are
primarily responsible for the well- being of their fellow travellers, with the state playing a


43 J Sloth-Nielsen ‘Child- Headed Households: a guide to laws, policies and social advocacy’
   Community Law Centre, University of the Western Cape, 2004
44 Chapter 11 'Social Welfare Rights’ in S Khoza (ed.) Socio Economic Rights (2nd Ed), Community Law

Centre, University of the Western Cape (forthcoming, 2006)
45 See the Social Security Agency Act 9 of 2004
46 See, in general, South African Law Reform Commission Discussion Paper on the Review of the Child

   Care Act, where this historical overview is provided in some detail


                                                                                                    16
subsidiary role only. The delivery of welfare services was therefore largely left to non-
governmental organisations, religious and other community structures, sometimes funded to
render services through state coffers by means of subsidies and service level agreements.
The effect, as has been pointed out, was a vastly skewed profile of social services delivery,
aimed largely at more privileged population groups and situated chiefly in urban areas. The
residential care sector - children’s homes, places of safety, shelters for children living on the
street, schools of industry and reform schools - did not escape the effects of this history.


The period 1996 – 2006 heralded a transformative era in the residential care sector.
Presaged by the appointment of a Cabinet Committee (the so-called IMC) to draft proposals
for the overhaul of the child and youth care system, brought about by the crisis that ensued
when legislation was put in place preventing children in trouble with the law from being held
in adult prisons whilst awaiting trial,47 the IMC brief extended beyond the child justice system
to the residential care system more generally, and included both policy and legislative
dimensions.48 Thus regulations to the Child Care Act 74 of 1983 were substantially revised in
1999, with new minimum norms and standards being set, including a prohibition on corporal
punishment and other inappropriate forms of discipline in residential care, public
participation on management boards, and provisions concerning children’s rights whilst in
the care of the state. Moreover, the development of secure care facilities as an alternative to
detention in prisons for awaiting trial children has taken off since the turn of the millennium,
and more children are now accommodated in welfare secure care facilities than in prisons to
awaiting trial.49 This can be regarded as a significant achievement. The operation of many of
the secure care facilities has been outsourced to private sector for-profit organisations;
however, the full extent of this development has not been properly evaluated especially
insofar as the impact it might have on the fulfilment of children’s rights is concerned.
However, as Sloth-Nielsen concludes, problems in the transformation of the residential care

47 See, for instance, J Sloth-Nielsen ‘Chapter 22: Child Justice’ in CJ Davel (ed.) Introduction to Child
   Law in South Africa (Juta and Co 2000, Cape Town). See also, G Odongo ‘The domestication of
   International law in Juvenile Justice Reform in Africa’ (LLD Thesis, University of the Western Cape,
   2006)
48 For recent analysis of the impact and legacy of the IMC, see J Sloth-Nielsen ‘A short history of time –

   charting the contribution of social development to child justice services in South Africa 1996-2006’
   (unpublished paper delivered at the Child Justice Alliance/ Open Society Foundation conference
   Child Justice: Children’s Rights under Construction, 1-2 August 2006
49 C Camilla and A Dissel ‘Children awaiting trial in prison’ (2006) Article 40, volume 8, No. 1,

   and J Sloth-Nielsen ‘A short history of time: the development of social welfare service to children in
   trouble with the law 1996 – 2006’ (unpublished paper prepared for the conference ‘Child Justice
   Reform: Children’s Rights Under Construction’ held in Gauteng by the Open Society Foundation for
   South Africa and the Child justice Alliance, 1 and 2 August 2006)


                                                                                                       17
sector remain. Specifically with reference to schools of industry and what were formerly
termed reform schools she says the following:


           “However, in practice it seems that huge difficulties continue to prevail. These
           include the adequacy of educational and vocational programmes for children sent
           there, maintenance of safety and security and inability to affect the domination of
           gangs, drug control, poor staff- learner relations and staff perceptions of extreme
           vulnerability, and lack of effective reintegration techniques. Moreover, the centres
           are disproportionately expensive to run, and are standing emptier and emptier,
           perhaps testimony to the lack of faith that the justice system has in both their
           containment and rehabilitative capacity.”50


The alternative care system is due to be comprehensively regulated by the new Children’s
Amendment Bill (this bill contains provisions concerning child protection related to provincial
competencies. It was introduced on 25 July 2006 into the National Council of provinces, and
the intention is that it will supplement and flesh out the (national) provisions contained in the
Children’s Act 38 of 2005, which it will supplement). Facilities will be renamed ‘child and
youth care centres’ to eliminate the stigmatisation sometimes occasioned by the naming of
facilities (e.g. reform schools), and provision will be made for a greater range of partial care
options (e.g. drop-in centres for children living on the streets). Provision for children’s rights


50    Sloth-Nielsen (note 49 above) p14; See further, The Centre for Child Law and Others vs. MEC for
     Education and Others Case No. 19559/06 (Unreported, judgment given 30 June 2006). In this
     case, which concerned the JW Luckhoff High School, at issue was the physical condition of the
     hostels the children were housed, the lack of access control, and the absence of proper
     psychological support and therapeutic services at the school were put in question. The applicants
     requested that the children, numbering about 150, be provided with sleeping bags to ward off the
     cold at night, that the conditions in the building improved for them and the developmental
     assessment assurance process is undertaken. The Respondent, the MEC for Education argued that
     the problem was created because of budget constraints. It further contended that providing sleeping
     bags for the children, as requested by applicants, would be violating the equality principle of the
     Constitution, lest others similarly denied their rights should seek the same remedy at very significant
     cost to the state. After considering the relevant provisions of the Constitution and Child Care Act,
     the Court gave orders compelling the authorities to provide each child with a sleeping bag, and to
     put in place proper access control and psychological support structures. It also ordered the MEC for
     Education, the first respondent, to be directed to make immediate arrangements for the school to
     be subjected to a developmental quality assurance process. The Court also found that psychological
     and social support is a critical ingredient of state care, absent parental support, and found that the
     absence of such a service is unacceptable. The Judge ordered that, given the dilatory and
     lackadaisical approach taken so far, it would be a good idea that the court retained a supervisory
     role to ensure progress in particular pertaining to undertaking the developmental quality assurance
     process



                                                                                                         18
whilst in alternative care will be included, as well as for developmental quality assurance
(DQA) in the residential care system.51


Alternative care must be seen within the context of South African constitutional law, drawn
from international law, which provides that deprivation of liberty should be seen as a last
resort. IMC policy also supported the view that the least restrictive intervention should be
employed as far as the care system generally is concerned, with the removal of children into
statutory care the least preferred option, especially where community and family placements
are possible.52


Several recent cases and studies have pointed to inadequacies in the residential care
system generally. Commencing with the IMC report into places of safety, schools of industry
and reform schools in 1996, which detailed a litany of human rights abuses and inadequate
programming in the above institutions (the latter two being managed by provincial education
departments), transformation of this sector has proved problematic. A 2004 report on
facilities in the Western Cape revealed inadequate referrals of children to care institutions,
inadequate attention to protection and promotion of their rights, and lengthy stays in care
facilities without adequate attempts at reintegration or at placement within a community or
family setting.53


Litigation was brought in the Eastern Cape Province in 2004 to compel the provincial
Departments of Education and Social Development to provide a reform school for children
upon whom such a sentence had been imposed – these children were, in the absence of a
provincial facilities, being detained (seemingly ad inifinitum) in ordinary prisons. The litigation
was successful to the extent that the court imposed (unusually) a structural interdict,
requiring regular reports to be provided back to the judicial officer indicating progress made
in the erection and staffing of such a facility. It must be noted, though that although initial



51  The developmental quality assurance process recently received the judicial stamp of approval in
   The Centre for Child Law and Others vs. MEC for Education and Others Case No. 19559/06
   (Unreported, judgment given 30 June 2006 (note 50 above)
52 IMC policy in this regard is to be found in the draft interim recommendations for the transformation

   of the Child and Youth Care system (Government of the Republic of South Africa, 1996), as
   described more fully in J Sloth-Nielsen ‘A short history of time’ (note 42 above)
53 See a summarised version of this report entitled ‘Provincial Administration of the Western Cape

   (PAWC) commissions a review of facilities’ (2004) Article 40, volume 6, No. 4. The author was the
   lead consultant in the preparation of this report; however, the full text of the report has not been
   made public


                                                                                                     19
reports were satisfactorily placed before the court, these tapered off to the extent that child
rights litigation lawyers are now considering going to court for a further mandamus.54


It can be concluded that the harmonization of South African law and policy relating to
children’s rights to know their parents, to adoption, foster care and alternative care, is still
evolving and that many challenges remain. These are exacerbated by the growing numbers
of children affected by HIV/ AIDS, including orphans and children growing up in child-headed
households. Whilst South Africa has the benefit of some forms of state financial assistance
for the care of children (the foster care grant, the child support grant, and subsidies to non-
profit organisations accommodating children in children’s homes and places of safety), there
is no uniform picture that emerges across this sector. The availability of a not insubstantial
foster care grant has weighted care arrangements in favour of that option, as it provides the
larger sum of money. This may well be unaffordable in the longer term for the country, even
though it has been regarded as the primary response to the care of children affected by HIV/
AIDS.


2.1 The best interests of the child, child welfare and protection, including child abuse,
protection of children from violence, and the influence of customary law and practice


Child care and protection, including child abuse
This sphere is governed by both legislation and common law, but the key point of departure
is the Child Care Act 74 of 1983. Enacted at the height of apartheid, and providing for a
limited array of interventions, this Act was largely unknown by child rights activists and the
legal fraternity until the period after 1996. The Child Care Act covers a limited range of
issues relating to children, notably adoption, the establishment and functioning of the
children’s court,55 removal of children in need of care and protection, the residential care
system, foster care, children’s’ and parents’ consent to medical and surgical treatment, and


54  S v Zuba and 23 similar cases (cases no CA40/2003 and 207/2003, Eastern Cape Division,
   judgment handed down on 2/10/2003). For a review of the judgments, see J Sloth-Nielsen
   ‘Interdicts and Child Justice - a big-stick approach’ (2003) Article 40, volume 5, No. 4. See also J
   Sloth-Nielsen ‘Structural interdicts again - the Zuba saga continues’ (2004) Article 40, volume 6,
   No.1 See also S v M (case No. 435/04 and 237/04, judgment delivered 11/11/2005) relating to
   children detained in prison in the Northern Cape Province due to the absence of an alternative
   facility
55 Although this might indicate that South Africa has specialised courts for children, this is in practice

   not the case, as every (ordinary) magistrates court is deemed to be a children’s court, and every
   magistrate a commissioner of child welfare. Specialisation is rare, save in a few key urban centres
   where one magistrate sits on more or less a full time basis dealing with children’s court matters


                                                                                                         20
the reporting of child abuse and neglect. With successful several Constitutional challenges
having been brought (principally in the field of adoption), the Community Law Centre of the
University of the Western Cape, co- hosting with the Parliamentary Portfolio Committee on
Welfare and Population Development, convened a conference in September 1996 to debate
the possibility of reviewing and redrafting the Child Care Act, inter alia to broaden it’s scope
and to ensure the domestication of CRC and ACRWC values.


The South African Law Commission was therefore tasked by the Minister for Welfare and
Population Development (now Social Development) and the Minister of Justice to investigate
legislative reform proposals in the child law sphere. It must be noted that this process
commenced after the Project Committee on Juvenile Justice had been appointed and had
started preparing legislative reform proposals for a new juvenile justice system, and that this
fact of life lead to a split between juvenile justice law and the endeavour to review child law
more generally.56 However, there were project committee members that were common to
both committees, and ongoing links between the two processes were ensured.


As with the process followed by the project committee on juvenile justice, the project
committee on the Review of the Child Care Act followed a broadly consultative process,
convening workshops in both large and smaller cities, and eliciting public input. A child
consultation process also took place, focusing on children in residential care, children with
disabilities, children in foster care, children who were living on the street, and children who
had suffered abuse and neglect.57 Several dedicated (themed) research papers were
commissioned, inter alia on topics such as the legal protection of street children, the
parent/child relationship, the role of local government in the delivery of children’s rights and
child care services, and the residential care system. Workshops with stakeholders drawn
from the specific sector concerned were held to deliberate upon the research papers, and
government and non-governmental representatives drawn into the process. This inclusivity




56 Prof Jaap Doek, current chairperson of the UN Committee on the Rights of the Child has expressed
the view that child protection and child justice should be dealt with separately as the needs of each
group of identified children differ (intervention during the conference ‘Child Justice: Children’s Rights
Under Construction’ 1-2 August 2006, Gauteng, South Africa)
57 Community Law Centre ‘Report on Children’s Rights: They should listen to our side of the story’

   (2002) and L Ehlers ‘Children’s Participation on Law Reform in Southern Africa’ (unpublished MPhil
   thesis, University of Cape Town, 2005)


                                                                                                       21
and breadth of geographical and human consultation can be regarded as a best practice,
time consuming and cost intensive though it may have been.58


The project committee from the outset determined that the scope of the investigation would
proceed well beyond the existing provisions of the Child Care Act, and that it would consider
(in addition to the matters already dealt with in the Child Care Act) the entire gamut of private
law concerning the parent/ child relationship, the position of children in alternative families
and kinship structures,59 children and international adoption which needed attention due to
South Africa’s ratification of the Hague Convention on International Adoption, categories of
children in especially vulnerable circumstances (child victims of abuse and neglect, street
children, children in child- headed households, children subjected to harmful cultural
practices and so forth), as well as fiscal issues related to the implementation of the
legislation. 60 Consequently, the final three volume Report and draft Children’s Bill released
by the South Africa Law Commission at the conclusion of the Law Commission’s process in
2002 included a discrete chapter on grants and financial support to various groups of
children, as well as proposed legal provisions intended to replace the provisions of social
security legislation which were then in operation, although, as mentioned earlier, the chapter
on grants did not survive the Parliamentary process.


The Children’s Bill was introduced into Parliament in August 2003, after being scrutinized by
State law advisers and (largely accepted) by Cabinet. However, three important
considerations emerged. First, as stated, Cabinet eliminated from the tabled version many
provisions with financial resource implications, such as requirements in the chapter on
children’s courts which would have promoted specialization yet had fiscal implications. The
Chapter on grants for children with special needs was excised in it’s entirely, although the
reasons for this were slightly different, namely the pending overhaul of all social security
legislation and the assignment of the payment of social security to the newly established


58  It must be pointed out that some of the processes described here were carried out with donor
   funding or other forms of external assistance
59 It must be noted that the South African Constitution proscribes discrimination on the basis of sexual

   orientation, and this has surfaced in the children’s rights arena insofar as the rights of gay and
   lesbian couple to adopt children jointly as a couple is concerned (Du Toit v Minister for Welfare and
   Population Development 2003 (3) SA 198 (CC)). Further, surrogate parenthood arrangements
   warranted investigation insofar as legal regulation of this was sorely lacking
60 The need for fiscal resources to accompany improved legislation protection was referred to early on

   in the law reform process by two project committee members (See J Sloth-Nielsen and B Van
   Heerden ‘The Political Economy of child law reform: Pie in the Sky?’ in CJ Davel (ed.) Children’s
   Rights in a Transitional Society Protea Book Publishers; Pretoria, 1998)


                                                                                                     22
National Social Security Agency, a move required following a constitutional challenge to the
Department and Provinces which have until now performed this function.


Second, the state law advisers regarded the Bill as a mixed bill, insofar as some provisions
concerned national government functions only, whilst others covered matters which fell
within the realm of both national and provincial constitutional competency. In the case of
each type of provision, the Constitution requires different Parliamentary procedures to be
followed. Hence the composite legislative enactment produced by the Law Commission was
split into what became known as the section 75 Bill and the section 76 Bill (the respective
sections referring to the Constitutional provisions which outline the parliamentary procedure
for National and Provincial Bills). The decision was taken to deal with the section 75 Bill,
affecting national competencies, first. This Bill was finalised on 14 December 2005 and
signed by the President in May 2006 (it is now known as the Children’s Act 38 of 2005).
During 2006, it is envisaged that the sections eliminated from the complete Bill will be dealt
with as an amendment to the principal Act. Thereafter, regulations and Forms will have to be
in place so as to enable practitioners to implement the new Children’s Act. Hence,
promulgation is not expected before 2008. Indications are, however, that the provisions may
be implemented on a piece-meal basis in the meantime, particularly where large legal
loopholes exist such as in relation to inter-country adoption.61


Third, the Parliamentary process also took it’s toll on the final content; sometimes the
legislature improved upon the original proposals,62 but there remain areas of concern,
notably in the following areas:
        All references to the rights and special protective provisions for unaccompanied
         foreign children were eliminated, due to pressure from the Department of Home
         Affairs, which regard this as an area of their exclusive legislative competence.




61 Presentation by a legal drafter, National Dept of Social Development, University of the Western
   Cape, 22 March 2006
62 An NGO coalition, the Children’s Bill Working Group, coordinated civil society inputs, research and

   submissions on discrete topics and themes These, coupled with continued expert assistance to the
   Portfolio Committee from time to time, significantly influenced the debates in Parliament. A wide
   range of documents and working papers can be found on the website of the Children’ s Institute at
   the University of Cape Town www.uct.ac.za/depts/ci The support and expertise from different
   sectors given to Parliament can be regarded as a best practice in legislative development, in the
   view of the author


                                                                                                    23
This has been described as a blow, given that the CRC recognised the special vulnerability of
this group of children and requires not only that they not be discriminated against, but that
positive measures to ensure fulfilment of their rights be undertaken by states.63
          The Law Commission’s subtle attempt to abolish parental corporal punishment
           through removing the ‘reasonable chastisement’ defence available at both criminal
           and civil law level failed to survive the legislative process.
          The provisions fleshing out section 28(1) (h) of the Constitution regarding the
           provision of legal representation at state expense in civil proceedings affecting the
           child were considerably narrower and vaguer than hoped for.64
          The jurisdiction of the High Court concerning matters relevant to guardianship has
           been retained, despite proposals that this jurisdiction be conferred on courts at
           magistrates’ court level, because magistrate’s courts are district courts and are
           therefore geographically and economically more accessible to children and to their
           care-givers.


A costing of the Bill (both the section 75 and 76 versions together) was commissioned by the
National Department of Social Development (previously Welfare and Population
Development), and this was undertaken over the period 2004-2006 by a team lead by
economists. The results of this process have not, at the time of preparation of this chapter,
been released by the Department yet. Nevertheless, it is expected that the costing will be a
valuable adjunct to the Bill in that it will highlight where gaps exist and what measures need
to be adopted to ensure full implementation of the final provisions.


The Children’s Act adopted thus far does make great strides in domesticating the provisions
of CRC and ACRWC. As this Act is already a lengthy document, even without the excisions
occasioned by the split Parliamentary process, only a brief overview of key areas will be
highlighted here.


First the Bill includes a list of children’s rights and responsibilities, for the first time in
municipal law in South Africa. Although much comment and criticism can (and has) been

63   Children’s Institute summary of successes and failures relating to the Children’ Act 38 of 2005
64   The Child Care Act had been amended in 1996 to spell put when a child should be offered legal
     representation at state expense in civil proceedings to avoid substantial injustice from occurring, but
     this amendment never acquired force of law, as it was not promulgated. This was due to a lack of
     agreement between the Justice and Welfare Departments as to which would bear responsibility for
     these costs


                                                                                                         24
levelled at the pared down provisions that eventually emanated from Parliament, some
notable new provisions are:
       A requirement that all spheres of government co-operate in the development of a
        uniform approach aimed at integrating services dealing with children’s care,
        protection and well-being (section 5)
       General principles binding all proceedings, actions or decisions in any matter
        concerning children, which include respect for the child’s constitutional rights,
        respect for dignity, protection of the child from unfair discrimination on any ground
        including health status or disability, recognition of children’s right to development,
        and provision to the child and his or her family the opportunity to express views
        where this is in the best interests of the child (section 6)
       An elaboration of the best interests of the child principle, with the enumeration of 14
        discrete guiding factors which play a role in deciding what might be in a child’s best
        interests in individual cases, such as the need for a child to be brought up within a
        stable family environment, the need to protect a child from physical or psychological
        harm, and the nature of the personal relationship between the child and the
        parents, or any specific parent (section 7)
       A clause (section 10) granting children of such an age, maturity and state of
        development who are able to participate in any matter concerning that child, the
        right to participate in an appropriate way, and to have any views expressed given
        due consideration
       A clause enshrining the child’s right to protection from social, cultural and religious
        practices which are detrimental to his or her well-being, prohibiting children from
        below the minimum age for marriage of being given out in marriage, prohibiting
        female genital mutilation, and prohibiting virginity testing of children under the age
        of 16 years. Male circumcision is also regulated in furtherance of the protection of
        children, and every male child has the right to refuse circumcision (section 12)
       Children’s responsibilities are dealt with in section 16, which provides ‘every child
        has responsibilities appropriate to the child’s age and ability towards his or her
        family, community and the state’. This provision seeks to give particular effect to the
        provisions of the ACRWC concerning the responsibilities of children towards society


The Children’s Bill contains a comprehensive codification of the law relating to the
parent/child relationship. Chapter 3 follows the precedents elsewhere in providing for



                                                                                                 25
parental responsibilities and rights, in contrast to the common law position which made
provision for parental powers over children.65 The contents of parental responsibilities are
broadly spelt out in non- exhaustive fashion to include the remit of care and child rearing
duties commonly performed by parents. Provision is made for parental responsibility
agreements between persons having care of the child (including unmarried biological
fathers, but also any other person (e.g. grandparents) having an interest in the care, well-
being and development of the child (section 22)).


There are other ways, too, in which the Chapter as a whole tries to accommodate the
diversity of family forms and care arrangements that prevail in present day South Africa. A
key concern was to ensure legal provisions consistent with the emerging difficulties brought
about by the development of HIV/ AIDS, which predominantly affects women in the 20 – 39
age cohort, leaving children in the care of other (older or younger) family members.
Appointment of testamentary guardians in the event of the death of the parent is an example
in point.


The position of biological fathers of children born out of wedlock has been a thorny one. The
common law rule was that such a father had no inherent right of access to his biological
children where he was not wed to the mother at the time of conception or birth.66 Such
fathers did, however, bear responsibility for the maintenance of their children born out of
wedlock. Following a constitutional challenge in Fraser v Children’s Court, Pretoria North
(1997) 2 SA 261 (CC), Parliament enacted the Natural Fathers of Children born out of
Wedlock Act, 1997, which provided for the possibility of an application to the High Court to
secure access, custody or other rights in respect of these children. However, High Court
applications are expensive and specialized and are generally out of reach for ordinary
citizens. The Children’s Act 38 of 2005 therefore provides for some situations (such as
where the mother and father are cohabiting) where automatic rights and responsibilities
towards the child born out of wedlock would accrue without the necessity of a court
application.




65 This shift is discussed in detail in the South African Law Commission Report on the Review of the
   Child Act (2002), and had already become a feature of South African law via a number of decided
   cases dealing with the allocation of custody and access upon divorce (V v V 1998 (4) SA 169 (C))
66 This rule obviously also discriminated against fathers married according to the tenets of a non-

   Christian union, such as under Muslim personal law


                                                                                                       26
A signal provision, in section 4 of the adopted Act, provides that ‘recognising that competing
social and economic needs exist, organs of state in the national, provincial and where
applicable local spheres of government must, in the implementation of this Act, take
reasonable measures to the maximum extent of their available resources to achieve the
realization of the objects of this Act’. Placing a legal obligation upon all organs of government
as regards resource allocation for implementation of the Children’s Act, an obligation which
is surely justiciable should government fail to do so, is a welcome and novel development
giving effect not only to the general principles enshrined in CRC but also the principles
contained in the CROC’s General Comment no 5 (General Measures of Implementation), and,
seen together with the costing endeavour that has been undertaken by government, can be
regarded as constituting a best practice..



3. Health, education and security

3.1 Health
Early on in the post apartheid period, President Nelson Mandela announced a policy that
primary health care for pregnant mothers and for children under 6 years old would be free.
This position still prevails, and substantial transformation of the health care sector has taken
place to shift the delivery of health care services from predominantly (expensive and
inaccessible) tertiary health care services, to rolling out more accessible primary health care
services.


Constitutionally, two important rights relate to the fulfilment of health care services. First,
section 28(1) (c) refers specifically to children’s rights to basic health care services. Second,
section 27(1) (a) provides for the rights of everyone to have access to health care services,
including reproductive services. This right, as with other socio-economic rights formulations
in the Constitution, is to be implemented progressively and subject to available resources.
Section 27(3) further provides for everyone’s rights of access to emergency medical
treatment.


The interpretation of constitutional socio- economic rights has increasingly occupied the
attention of the courts since the adoption of the Constitution. The three signal cases that
require elaboration are Soobramoney, Grootboom and Treatment Action Campaign.




                                                                                                  27
In the early case of Soobramoney v Minister of Health, KwaZulu-Natal,67 the Constitutional
Court said, in relation to the interpretation of section 27(3) of the Constitution that
‘emergency medical treatment’ refers to the treatment that is available in emergency
situations, and is necessary to stabilise the patient and to avoid harm. An emergency
medical situation is defined as a situation where a sudden catastrophe immediately
endangers the life of a patient.


The Court decided that Mr Soobramoney, who was suffering from chronic kidney failure and
wanted free access to a dialysis machine, did not require emergency medial treatment,
because his kidney failure was an ongoing condition.


Many academic commentaries prior to the decision of the Constitutional Court in
Grootboom68 had suggested that the effect of section 28(1)(c) was to confer upon the state
an unqualified duty to provide a minimum level of food, shelter, basic healthcare services
and social services for children in vulnerable circumstances.69 The decision of the Cape High
Court (the lower court) in Grootboom v Oostenberg Municipality and Others70 had the effect
of upholding a claim for emergency shelter, which claim was based on children’s rights to
this amenity in circumstances where their parents were unable to provide this. The children
in this community, together with their parents and families, had been evicted from land they
had occupied during a cold Cape Town winter, sought enforcement of the right to have
access to housing or, in the alternative, fulfilment of children’s right to shelter as provided for
in section 28(1)(c). Upholding the latter claim, and given that it is not in the best interests of
children to be taken away from their parents in order for shelter to be provided, Davis held
that their parents enjoyed a derivative right to shelter. The Court held, however, that the
parents do not, thereby, become bearers of the constitutional right, which remains the right
of the child. In this reading, the court affirmed that section 28(1) (c) was drafted as an
unqualified constitutional right which could be directly enforced against various organs of
state.



67 1997 (12) BCLR 1696 (CC)
68 Government   of the Republic of South Africa and Others v Grootboom and Others 2000 (11) BCLR
   1169 (CC)
69 See, for example, P De Vos ‘Pious Wishes or Directly Enforceable Human Rights? Social and

   Economic Rights in South Africa’s 1996 Constitution’ 1997 (13) SAJHR 67 See further Chapter 8
   ‘Health Care Rights’ in Socio- Economic Rights Manual 2nd edition, Community Law Centre, 2006
   (forthcoming)
70 2000 (3) BCLR 277 (C)




                                                                                                   28
On appeal, this promising jurisprudence was not followed. The Constitutional Court was
obliged to consider the relationship between everyone’s right to housing, as set out in
section 26(2), and children’s right to shelter contained in section 28(1)(c). The court held
that there was an evident overlap between the rights in sections 26 and 27, which create the
right of access to socio-economic rights for everyone, and those in section 28(1)(c), which
concern the rights of children alone. Because of this, and because viewing the right to
housing and the right to shelter as being distinct would render the ‘carefully constructed
constitutional scheme’ for the progressive realisation of socio-economic rights nugatory, it
was held that section 28(1)(c) did not create a ‘direct and enforceable’ claim upon the state
by children. The Constitutional Court concluded that section 28(1) (c) did not create rights
that are separate and independent rights for children and their parents.71


The Constitutional Court elaborated further on the nature of the state’s obligation in relation
to section 28 rights by stating that, where children are in parental or familial care, the
obligation would normally entail the passing of laws and creation of enforcement
mechanisms for the maintenance of children and for their protection from abuse, neglect or
degradation.72 In the main, it would be parents who bear responsibility for fulfilment of the
services elaborated in section 28(1) (c), the Court reasoned. The State would, it was
suggested, bear responsibility only where children lacked a family environment 9such as
where they had been removed or orphaned). In relation to the other socio-economic rights in
the Constitution, the basic test that the Constitutional Court has approved is the
reasonableness test; the State must show that there is a programme or policy that is
reasonable in providing access over time to the right in question.


The Constitutional Court has subsequently provided a measure of clarity to its interpretation
of s 28 in Minister of Health and Others v Treatment Action Campaign and Others 2002 (10)
BCLR 1033 (CC) where the Court said that “[t]he state is obliged to ensure that the children
are accorded the protection contemplated by section 28 that arises when the
implementation of the right to parental or family care is lacking. Here we are concerned with
children born in public hospitals and clinics to mothers who are for the most part indigent
and unable to gain access to private medical treatment which is beyond their means. They
and their children are in the main dependent upon the state to make health care services


71   Para 74
72   Para 78


                                                                                                29
available to them”.73 The case concerned access to antiretroviral treatment to prevent
mother to child transmission of HIV/ AIDS during the birth process which the state had
refused to authorize, despite the necessary drugs having been offered free by the
manufacturers. The Treatment Action Campaign successfully challenged this policy. Despite
a slight amelioration of the Grootboom position, it is clear that the Constitutional Court does
not support the view that section 28(1) rights generally create direct entitlements that
children can claim.


Due to the ongoing jurisprudential development in the area of access to health generally, and
children’s rights to basic health care services specifically, it is not possible to conclude
definitively that the principles of CRC and ACRWC have been adequately assimilated in South
African law and policy. This remains an area for further exploration.


3.2 Education
Education under apartheid was a prime cause of political activism and the inferior Bantu
education system, with the fact that Afrikaans was forced upon non-Afrikaans speakers as
the language of learning being the prime cause for the 1976 Soweto riots which gave rise to
the death of township youth and caused an international outcry. Transformation of this
sector since 1996, the creation of national norms and standards, and the improvement of
the quality of outcomes in the education system, are indeed an ongoing project, as is the
elimination of discriminatory practices in the education system and the reduction of violence
against girls in the school system.74 The main features of the apartheid education system
were huge inequality in the financing of education, different curricula for different race
groups and restricted access of black learners to higher education.


EXAMPLE: APARTHEID SPENDING
In 1994, at the end of apartheid, the differences in annual expenditure for each child were:
          R5 403 for white children
          R4 687 for Indian children
          R3 691 for coloured children
          Between R2 184 and R1 053 for African children
                                                       Department of Education, 1995, 15

73   Para 79
74   See in general Chapter 12 ‘Education’ in Socio-economic rights manual (2nd edition, Community
     Law Centre, 2006 (forthcoming)


                                                                                                     30
The differences in education for the different races were vast. White schools had many
facilities, such as swimming pools, textbooks, laboratories, and soccer and rugby fields. In
contrast, African learners, especially rural learners, walked long distances to schools and
operated with few facilities, including lack of proper sanitation, running water or electricity.
Many dropped out of school at an early age, or did not ever go to school.


Today, while schools may not discriminate on racial grounds and must admit learners of all
race groups, huge inequalities still exist between schools that were historically ‘white’ and
schools that were historically ‘black’. This is mainly because of the way schools are currently
funded. Government contributes funds to all public schools, but these funds are not enough
to improve and maintain schools at a high standard, or to employ sufficient numbers of
teachers at all schools. Schools are therefore allowed to charge school fees to add to the
government funding. The effect of this system of funding is that schools in wealthier
communities, mainly the historically white schools, charge higher school fees and maintain a
high standard of education with sufficient numbers of teachers and good teaching facilities.
Many schools in poor areas, predominantly African schools, cannot generate high school fees
and therefore continue to deteriorate. 75


These are some South African Human Rights Commission (SAHRC) statistics on conditions in
27 148 schools in 2002:
        2,280 (8.4%) schools have buildings in a very poor condition
        10,723 (39%) schools have a shortage of classrooms
        13,204 (49%) schools have inadequate textbooks
        8,142,195 learners live beyond a 5km radius from the school
        10,859 (40%) schools are without electricity
        9,638 (36%) schools are without telephones
        2,496 (9%) schools are without adequate toilets
        19,085 (70%) schools do not have access to computer facilities
        21,773 (80%) lack access to library facilities
        17,762 (65%) lack access to recreational and sporting facilities76


75  Chapter 12 ‘Education’ in Socio-economic rights manual 2nd edition, Community Law Centre, 2006
   (forthcoming)
76 South African Human Rights Commission: 3rd Socio-Economic Rights Report 2000–2, p258, quoted

   in Chapter 12 ‘Education’ in Socio-economic rights manual 2nd edition, Community Law Centre,
   2006 (forthcoming)


                                                                                                   31
The Constitution enshrines education rights in a dedicated section (section 29), and not in
the children’s rights section as these rights are conferred not only upon children but upon
everyone. Section 29 (1) - (3) provide for the following discrete rights:
            o   The right to education including adult basic education
            o   The right to further education that the state must make progressively
                available and accessible through reasonable measures
            o   The right to receive education in the official languages of choice in public
                educational institutions where this is reasonably practicable77
            o   The right to maintain independent educational institutions at own expense
                (permitting choice between private and state-run education institutions; this
                is a ‘defensive’ right, meaning that it protects the right of people to establish
                independent schools without fear of invasion or interference by the state, but
                does not compel the state to provide or fund independent institutions)


The South African Constitutional Court has recognised that there is a positive obligation upon
the State to provide basic education to everyone (including children), but it has yet to
comment in detail on the scope and the content of this right.78 However, it has been noted
that an important feature of the right to basic education is that it is an unqualified socio-
economic right. It is therefore different to the qualified socio-economic rights, such as the
rights to health, housing, food, water and social security. These other rights are qualified to
the extent that they are made subject to ‘reasonable legislative and other measures’ and
‘progressive realisation’, such as is within the State's ‘available resources’.79


Despite the provisions of the CRC and the African Charter, primary education on South Africa
(despite her relatively wealthy status) is not yet free. Compulsory education from the age of 7
until the age of 15 (9 years of schooling) is provided for in the South African Schools Act 84
of 1996. Given the need for implementation of this constitutional right, the South African
State has tried to meet its duties to provide basic education by making the phases grade 1 –
9 (for children aged 7 – 15 years) the compulsory phase of education, and by prioritising this




77 South Africa has eleven official languages
78 In re: The Schools Education Bill of 1995 (Gauteng) 1996 (4) BCLR 537 (CC)
79 Chapter 12 ‘Education’ in Socio-economic rights manual (2nd edition, Community Law Centre, 2006

   (forthcoming)


                                                                                                32
phase in policy, planning and spending.80 In 2006, the South African Schools Act has been
amended to provide (for the first time) for changes to school fee laws which (when
implemented) will make some schools ‘fee free’. The provisions will affect the 40% poorest
schools in the country (i.e. the most disadvantaged schools). However, those schools may
continue to charges school fees in Grades 9–12.


Further, Section 39 of the South African Schools Act81 sets out the procedure which schools
must follow when adopting its school fee and exemption policy. Section 39 says that the
Minister of Education must make regulations setting out the criteria and procedure for
getting exemption from school fees. The Exemption of Parents from the Payment of School
Fees Regulations, 1998 (School Fees Regulations) then covers the criteria and procedure in
detail for indigent parents to apply for exemption from paying school fees. There have been
many allegations that this procedure has not worked well in practice, and that children
whose parents have not paid school fees suffer severe discrimination (such as not being
allowed to receive school reports or being promoted to the next grade), to the extent that
litigation against school governing bodies has ensued.82 This is despite the Admission Policy
for Ordinary Schools Act 27 of 1996 (the Admissions Policy), which prohibits discrimination
against learners on a variety of grounds, including inability to pay fees, HIV/ Aids status and
so forth.83 Although discrimination against the girl child is not permitted, a Human Rights

80  Chapter 12 ‘Education’ in Socio-economic rights manual 2nd edition, Community Law Centre, 2006
   (forthcoming)
81 The other principle legislative enactment in the education sphere is the Education Policy Act 27 of

   1996. Seen together, these laws were intended to comprehensively alter previous policies relevant
   to issues such as:
                  The funding of education and the charging of school fees
                  Governance for schools
                  The discipline of learners
                  Language policies for schools
                  Admission policies for schools and non- discrimination on the basis of race
82 See the description of 2003 case of Sorsa and Sorsa v Simonstown School (unreported) brought by

   the Centre for Applied Legal Studies (CALS) which successfully assisted parents in rescinding
   (setting aside) a default judgement for R24 000 for school fee arrears, discussed in Chapter 12
   ‘Education’ in Socio-economic rights manual 2nd edition, Community Law Centre, 2006
   (forthcoming)
83 See for further detail, Chapter 12 ‘Education’ in Socio-economic rights manual 2nd edition,

   Community Law Centre, 2006 (forthcoming). In the 2002 case of Antonie v Governing Body, Settlers
   High School and Others 2002 4 SA 738 (CPD), a Rastafarian learner challenged the school
   governing body’s decision that found her guilty of serious misconduct and suspended her for five
   days for wearing a dreadlock hairstyle and covering her head with a cap. The school decided that
   she had violated the school’s code of conduct that had a rule about the appearance of learners.
   The Cape High Court set aside the decision of the school governing body on the basis that it should
   have given ‘adequate recognition’ to the values and principles in the Constitution including the
   learner’s need to have freedom of expression


                                                                                                   33
Watch Report (2000) found that 1 in 4 girl learners in South Africa experience sexual
harassment in school. These acts are perpetrated by other learners and by educators. The
Report found further that girl learners who have experienced sexual abuse complain that
they find it difficult to continue to concentrate in school after the abuse or the harassment, or
that they drop out from school completely. The Education Department is currently busy
drafting regulations to protect girls against sexual harassment and abuse, and to provide for
the punishment of perpetrators.84


The 1996 South African Schools Act also abolished corporal punishment in schools. Section
10 of this Act provides that no person may administer corporal punishment at a school to a
learner, and provides further for a criminal offence should corporal punishment be
administered in breach of the above section. This section was subject to a constitutional
challenge in Christian Education South Africa v Minister of Education.85 The applicant was an
association of 196 independent schools which maintain a Christian ethos by providing an
environment where their learners can learn in keeping with their Christian faith. It was
argued that the abolition of corporal punishment in the school setting was a violation of
these schools’ ‘individual, parental and community rights to freely practice their religion’, on
the basis that corporal correction constituted a ‘vital element of the Christian faith’.86
Opposing the application, the Minister of Education relied on the equality clause in section 9
of the Constitution, since the applicant sought the right only to administer corporal
punishment to boys, having argued that ‘it was well known that girls were better disciplined
than boys’.87 Further, the Minister placed reliance on the right to human dignity in section
10, the right to freedom and security of the person in section 12, and the rights of children to
be protected from maltreatment, neglect, abuse or degradation in section 28(1) (d).


The Constitutional Court declined to decide whether the prohibition of corporal punishment
was a practice that was in violation of the Bill of Rights, preferring, instead, to address the
issue by way of a consideration of the limitations clause in section 36 of the Constitution. On
the assumption that the blanket prohibition violated the applicant’s constitutional rights to
religious and cultural freedom, the central question posed by Sachs J was “whether the

84 Chapter 12 ‘Education’ in Socio-economic rights manual 2nd edition, Community Law Centre, 2006
   (forthcoming)
85 2000 (10) BCLR 1951 (CC)
86 Christian Education South Africa v Minister of Education 2000 (10) BCLR 1951 (CC) at para 2
87Christian Education South Africa v Minister of Education 2000 (10) BCLR 1951 (CC) at para 15 fn

12


                                                                                                  34
failure to accommodate the appellant’s religious belief and practice by means of an
exemption for which the appellants asked, can be accepted as reasonable and justifiable in
an open and democratic society based on human dignity, freedom and equality”.88 The
answer was that such limitation was reasonable and justifiable, and the appeal was not
upheld.
The reasons for this finding include the need for uniform norms and standards in schools,
international law’s recognition of the need to protect children from the potentially injurious
consequences of their parents’ religious practices, the constitutional duty on the state to
help diminish the amount of public and private violence in society, and the duty incurred by
the state upon ratification of the United Nations Convention on the Rights of the Child to
‘take all appropriate measures to protect the child from violence, injury or abuse’.89 Allusions
were also made to the symbolic and principled function of introducing such a prohibition,
given the authoritarian past which had prevailed in South Africa.90


This clear enunciation of the need to protect children from all forms of violence at the level of
the Constitutional Court can certainly be regarded as a best practice.


3.3 Social security91
The right to social security is provided for in international as well as regional instruments.92 In
a similar manner, access to social assistance for those who are unable to support
themselves and their dependents is a constitutional right in South Africa.93 More over,
section 28(1) (c) of the Constitution affords every child the right “to social services”.
However, although the Grootboom and TAC case could be of some guidance, the precise
meaning of children’s rights to social services in the Constitution has to date not been
explained in detail by any court. In particular, it is unclear whether this formulation refers to
social assistance (i.e. social security or grants) or other forms of social services. The latter is


88 Christian  Education South Africa v Minister of Education 2000 (10) BCLR 1951 (CC) at para 32
89 Christian  Education South Africa v Minister of Education 2000 (10) BCLR 1951 (CC) at para 40,
   referring to articles 4, 19 and 34 of the Convention on the Rights of the Child
90 Christian Education South Africa v Minister of Education 2000 (10) BCLR 1951 (CC) at para 50
91 Social security is made up of 2 parts namely social assistance (grants) and social insurance. Under

   the definition provided in the South African Social Security Agency Act 9 of 2004, social security
   consists of social assistance and social insurance
92 For instance, it is entrenched in the ACRWC (Articles 13(2) and 20(2) (a)) the CRC (Article 20(1) (3)

   and 23(2) and 26(1) (2). Moreover, the ICESCR, under Article 9, provides that ‘[t]he States Parties to
   the present Covenant recognise the right of everyone to social security, including social insurance’.
   However, it is notable that South Africa is not a party to the ICESCR
93 Section 27(1) (c) read with (2)




                                                                                                      35
the more likely reading, although again the content of the right to social services is yet to be
determined.94


Children’s rights in general were supposed to be strengthened through a new Children’s Act,
passed by Parliament in part in December 2005.95 As mentioned, the original idea was that
the new law would pull together a number of rights, including the legal status of children,
their rights to social security and their rights to social services. But the Parliamentary
Portfolio Committee decided to split the financial aspects of the law from other aspects of
children’s law. The final version will thus not refer to social grants at all.96


Nonetheless, the White Paper for Social Welfare in South Africa refers to social security as a
wide range of public and separate measures that provide cash or in kind benefits, or both.97
It also provides that it is committed to provide ‘the provision of a comprehensive national
social security system.’98


Social grants are currently still regulated in terms of the Social Assistance Act 59 of 1992. A
new Social Assistance Act (Act 13 of 2004) was enacted in 2004, but must still come into
force on a date determined by the President in the Government Gazette.99 Child related
grants consist of the child support grant, the foster child grant and the care-dependency
grant. These grants are still administered by the Provincial Departments of Social
Development in terms of the Social Assistance Act 59 of 1992 pending the roll out of the
new South African Social Security Agency, which will take over the administration of the
grants system as a quasi autonomous entity.

94 J Sloth-Nielsen 'The child's rights to social security to social services and the prevention of child
abuse: some conclusions in the aftermath of Grootboom' vol 17(2) South African Journal on Human
Rights 210
95 Act 38 of 2005
96 See Chapter 11 ‘Social welfare rights’ in Socio-economic rights manual 2nd edition, Community Law

   Centre, 2006 (forthcoming)
97 Department of Welfare and Populations Development (1997)
98 Department of Welfare White Paper for Social Welfare (1997) (Chapter 7 para 26(a))
99 The new Social Assistance Act makes provision for a child support grant (section 6), a care-

   dependency grant (Section 7), a foster child grant (section 8) a disability grant (section 9), and old
   persons grant (section 10) a war veteran’s grant (section 11), a grant in aid (section 12), and also
   for financial awards to welfare organisations and persons (section 13). These grants are similar to
   the grants available in terms of the 1992 Social Assistance Act. (In terms of Section 2 of the Social
   Assistance Act 59 of 1992, Social grants are made to the aged, to disabled persons and to war
   veterans (section 2(a)). These categories could also qualify for a grant-in-aid (section 2b), while war
   veterans could also qualify for supplementary grants (section 2(c)). Unless a person is disabled,
   there is no social security between the ages of 14 and 60 years (the pensionable age for women) or
   65 (the pensionable age for men)


                                                                                                        36
The child support grant is payable to primary care givers of children currently under 14 years
of age.100 The child support grant (established in 1998), was initially only available to primary
care givers of children aged under seven years old. However, after successfully advocacy by a
consortium of non-governmental organisations,101 it was phased in to gradually
accommodate children under the age of 14 (in 2005).102


The care dependency grant is payable to the parent, primary care giver or foster parent of a
child who requires and receives permanent care or support services on account of his or her
physical or mental disability and who is not cared for on a 24 hour basis for a period
exceeding six months in an institution that is fully funded by the state.103 A foster parent is
eligible for a foster child grant for a child as long as that child needs such care, if the foster
child is in need of care and if he or she satisfies the requirements of the Child Care Act.104


Government rightly touts its social security programmes as its most successful ‘fight against
poverty.’105 Currently, it provides that over six million – indeed nearly seven million - South
African children benefit from social grants.106 In order to improve the delivery of social grants,
government has established the Social Security Agency.107 However, provision of social


100 The amount payable is currently R190 Rand a month for each child until child’s 14th birthday, or
  the death of child or primary caregiver, or when the child is no longer in custody of primary caregiver
101 See Chapter 11 ‘Social welfare rights’ in Socio-economic rights manual (2nd edition, Community

Law Centre, 2006 (forthcoming)
102 See ‘Maintenance and Grants’ in Lawyers for Human Rights Children and the Law (2nd ed., 2004)

  p239
103 The maximum payable amount is R540 per child and it is payable until the child is 18 (the child

  can then apply for a disability grant), or parent or child dies, or child admitted to a State institution
  for care, or until the death of beneficiary. See, too, ‘Maintenance and Grants’ in Lawyers for Human
  Rights Children and the Law (2nd ed., 2004) pp243-244
104 Act 74 of 1983.The payable amount is R780 Rand until foster child turns 18 (but this can be

  extended to 21 if the child is at school) or the child is no longer in the custody of a foster parent.
105 The government has progressively extended the child support grant to cover children up to the age

  of 14. Children aged between 10 and 11 qualified in the 2004/05 financial year, while children
  between the ages of 12 and 14 came on board in 2005/06. See ‘Spreading the social security net’
  www.southafrica.info/ess_info/sa_glance/social_delivery/social_grants.htm September 2005
  (accessed 07 August 2006)
106 Ibid. See too Children’s Institute Fact Sheet no3 (2006) ‘Facts about the take up of the Child

  Support Grant’
107 The South African Social Security Agency was set up by the government to root out fraud and

  improve efficiency in the administration of the country's social grants. The national agency is
  expected to be up and running some time during 2006. The aims are to speed up delivery of social
  grants, cut down on corruption in the system, and ultimately lift the burden of administering grant
  applications and payments from the country's nine provinces. By March 2007, the new agency will
  have taken over grant payments from all nine provincial social welfare departments, shouldering the


                                                                                                        37
security is not without its shortcomings. There are obstacles raised by service providers108 as
well as by beneficiaries (which primarily include lack of birth certificates and identification
documents), potential beneficiaries and care givers.109
Nevertheless, it can be concluded that as a poverty alleviation measure, the South African
government can claim huge success in a relatively short period of time in ensuring that cash
benefits reach needy children.110 The next step is to ensure that all children aged below 18
benefit from the child support grant, and that the current ceiling of 14 years is progressively
raised.


4. Child justice

It has been argued that the birth of the children’s rights movement in South Africa was
integrally linked to the detention without trial of children protesting against the apartheid
state in the 1980s.111 A seminal trigger was the convening of an international conference in



  responsibility of distributing over R55-billion to more than 10 million needy South Africans annually.
  See South African Info ‘SA’s Social Security Agency’
  www.southafrica.info/ess_info/sa_glance/social_delivery/update/socialsecurityagency.htm
  (accessed 7 August 2006)
108 Lack of sufficient finances, limited human resource capacity and the fact that claimants who lack

  the requisite documentation and physical access to government offices, especially in remote areas
  are few of the problems mentioned. See ‘Maintenance and Grants’ in Lawyers for Human Rights
  Children and the Law (2nd ed., 2004) pp205-206
109 Currently, it is argued that there are two reasons why there are so many children outside of the

  safety net 1) the law says that they do not qualify, or 2) they do qualify, but service delivery and
  other barriers prevent them from accessing their grants. There are many poor children under 18
  who are not considered poor enough because their care givers earn more than the means test
  threshold. More over poor children between the ages of 14 and 18 cannot access the child support
  grant because the law says only children 14 years qualify. Children without adult caregivers, such as
  children living in child headed households cannot access grants because the law is interpreted to
  mean that only adults can apply for grants. Children with moderate disabilities and chronic illnesses,
  including HIV/ AIDS cannot access the care Dependency Grant because the law says that only
  children with severe disabilities who require permanent home care qualify. In certain provinces,
  children in crisis situations have no access to an emergency grant because the Social Relief of
  Distress Grant is discretionary and is not available in all the provinces. See P Proudlock ‘Widening
  the reach of social assistance’ ACESS Newsletter (November 2003)
  www.acess.org.za/documents/newsletter/nov03.pdf (accessed 7 August 2006). For a detailed
  explanation of the obstacles in implementation both from the view point of service providers and
  beneficiaries, potential beneficiaries and caregivers, see Chapter 5 ‘Monitoring child socio-economic
  rights in South Africa: achievements and challenges’ E Coetzee and J Streak (eds.) pp204-207
110 To illustrate, in the three months from October to December 2005, 400,000 new grant

  beneficiaries were registered. There is no reason to believe that this take up rate will slow down. It is
  estimated that approximately 2 million eligible children are not yet registered beneficiaries
  (Children’s Institute Fact Sheet no3 (2006) ‘Facts about the take up of the Child Support Grant’, p2)
111 J Sloth-Nielsen ‘The influence of International Law on Juvenile Justice Reform in South Africa’

  (unpublished LLD thesis, University of the Western Cape, 2001). See also G Odongo ‘The


                                                                                                        38
Harare in 1987 to examine the plight of children under apartheid and to advocate for a
children’s rights lobby group. In 1990, when agreement concerning negotiations for a
transition to democracy commenced, children’s rights activities turned their attention to the
plight of children arrested for ordinary criminal offences who were awaiting trial in prison.
Campaigns such as ‘Letting in the light’, ‘No child shall be caged’ and ‘Free a child for
Christmas’ captured the public attention, attention that was given renewed impetus by the
death of a child at the hands of an adult in police custody in 1992, where he had been
placed after being charged with theft of sweets. The Community Law Centre of the University
of the Western Cape, then headed by Adv D Omar, played a central role in the growing
advocacy movement. It comes as no surprise, then, that after the first democratic elections,
when Adv Omar was appointed Minister of Justice, he established a project committee of the
South African Law Commission112 to investigate proposals for separate legislation
underpinning a new juvenile justice system.


The project committee completed its work in 2000, and thereafter ceased to function. The
methodology followed was inclusive and widely consultative. The project committee first
prepared an Issue Paper, asking broad question about such issues as how to enhance
access to diversion, the proposed role of social workers and other stakeholders, how to
reduce the detention of children and how to increase access to alternative sentencing, and
the minimum age of criminal capacity. Workshops were held with magistrates, prosecutors,
legal aid counsel and inter-sectorally. A specific workshop on cultural, anthropological,
psychological and legal aspects of age and criminal capacity was held with experts and
traditional leaders, and an international expert seminar on best practice drawn from
international and regional experience convened. On the basis of all submissions and inputs
received, a lengthy Discussion Paper (No 79) containing a draft Bill was released for further
public debate in December 1998. The proposed Bill was again subjected to a fresh round of
public consultation, and a large number of written comments and submission were received.
A separate consultation with children was commissioned, and their inputs taken into
account.113 A unique aspect of the law reform process was the commissioning of a costing




  domestication of International Law in juvenile justice systems in Africa’ (unpublished LLD thesis, the
  University of the Western Cape, 2006)
112 Now the South African Law Reform Commission
113 See ‘What the Children Said…’ Children’s Rights Project, Community Law Centre, 1999, and L

  Ehlers ‘Children’s Participation on Law Reform in Southern Africa’ (unpublished MPhil thesis,
  University of Cape Town, 2005)


                                                                                                     39
exercise,114 intended primarily to lay the basis for subsequent advocacy and lobbying during
the parliamentary process.


Insofar as the actual contents of the proposed provisions were concerned, it has been
asserted that three main influences characterised the approach of the project committee.115
First, the intention to domesticate in municipal law the provisions of international law, as
evidenced by the CRC and other relevant documents such as the Beijing Rules (1985) and
the UN Standard Rules for Juveniles Deprived of their Liberty (1990); second, to provide a
legislative framework for the growth and development of diversion and restorative justice
practice; and third, to ensure heightened awareness of the socio-political realities of the
transitional period after apartheid. Chief amongst these were a growing public concern about
crime and its prevalence, a number of legislative responses to the public perception that
government was too soft on crime,116 and an awareness of the resource constraints that
might be raised in opposition to the proposed system. There had also been sustained
interventions – legislative and otherwise – since 1994 – concerning the detention of children
awaiting trial in prisons, and the attitude of the legislature in this regard had already to an
extent been put on the table with draft legislation that was ultimately not finalised by
Parliament, but which clearly demarcated the envisaged parameters of what Parliament
would expect to see in the tabled law reform.117


The final version of the Law Commission’s proposals were subjected to some reworking by
Departmental Law Advisers, but were ultimately tabled more or less intact as the Child
Justice Bill 49 of 2002. During 2003, the relevant parliamentary committee held public
hearing on the Bill, and numerous non- governmental organisations utilised the opportunity
to make written and oral submissions. However, the relevant committee, with the then

114 Afrec report ‘Costing the Child Justice Bill’, available at www.childjustice.org.za. This website also
  refers to a wealth of materials on child justice development in South African context
115 A Skelton ‘Crime control vs Children’s Rights’ in CJ Davel (ed.) Children’s rights in a Transitional

  Society (Protea Book House, 1998); J Sloth-Nielsen, LLD thesis supra; A Skelton ‘Developing a
  juvenile justice system for South Africa: International instruments and restorative justice’ (Acta
  Juridica 2000) pp180-190; A Skelton ‘The South African Child Justice Bill: Transition as Opportunity’
  in E Jensen and J Jepsen (eds.) Juvenile Law Violators, Human Rights and the Development of New
  Juvenile Justice Systems (Hart Publishing, Oxford, 2006)
116 Such as the introduction of harsher bail legislation, the enactment of legislation providing for

  minimum sentence for certain serious offences via Act 105 of 1997, and enactment of anti-gang
  laws and so forth. This is described in L Ehlers ‘Child Justice: An analysis of the Child Justice reform
  process in South Africa and a comparative analysis of child justice in the United States’ Criminal
  Justice Project Occasional Paper no 1, Open Society Foundation of South Africa (2006)
117 See J Sloth- Nielsen ‘The Business of Child Justice’ in J Burchell and A Erasmus (eds.) Criminal

  Justice in a Transitional Society (Juta and Co, Cape Town, 2003)


                                                                                                       40
chairperson at the forefront, spent the greater part of the remainder of the year, deliberating
on individual provisions, with enormous attention to technical and policy detail. The legal
drafting team were required on regular occasion to redraft and reformulate and then to
resubmit revisions to the committee. However, as the year drew to an end, the final work of
the drafters was not tabled, meaning that the latest draft is not available for public perusal.


When Parliament reconvened after the April 2004 elections, the Bill was not re-introduced. A
new Minister, Deputy Minister and Portfolio Committee chairperson having been appointed
after the elections, the interest at Parliamentary level in child justice disappeared, and
attention was focused on unrelated justice bills. That situation still prevails, and there is no
indication of movement towards finalisation of child justice legislation for South Africa. A
recent conference118 convened by the Child Justice Alliance and the Open Society Foundation
for South Africa sought to highlight the delay , and a the issue attracted a good deal of media
coverage.


Even if the Child Justice Bill were to be finalised, there is some doubt as to the extent to
which its provisions would be congruent with international law principles. This comment is
made against the backdrop of the indications provided during the Portfolio Committee
deliberations in 2003 of the changes to the tabled Bill that Parliament was requiring to be
enacted.119 Some key issues were:


         Present legislation enacted in 1996 prohibits the pre-trial detention of children
          aged below 14 in prisons. This rule may not survive, and limited exceptions may be
          created to permit children under 14 to be detained in prisons, which would
          constitute a retrogressive measure in relation to the CRC provision that detention
          should be a matter of last resort.
         Whilst the original bill proceeded from the assumption that decision making
          regarding diversion and sentencing would be individualised, the thinking that now
          prevails is that diversion would be excluded for certain (older) children accused of
          serious crimes, determined by reference to a schedule of offences rather than the
          individual circumstances under which the offence was committed.

118Held in Gauteng on 1 and 2 August 2006
119This is discussed fully in L Ehlers ‘Child Justice: An analysis of the Child Justice reform process in
  South Africa and a comparative analysis of child justice in the United States’ (note 116 above), as
  well as in A Skelton ‘The influence of the theory and practice of restorative justice in South Africa
  with special reference to child justice’ (LLD thesis, University of Pretoria) (unpublished) (2005)


                                                                                                            41
         There is still uncertainty as to whether Parliament will agree to raise the minimum
          age of criminal capacity from 7 years, the present position, to 10 years (with a
          rebuttable presumption of criminal incapacity operating ex lege for children aged
          between 10 and 14 years) as proposed by the South African Law Commission.
         It appears that there is still support for mandatory sentencing provisions to be
          extended to children convicted of serious offences where they are 16 or 17 years
          old.120
         The likelihood exists that certain children (aged 16 and 17 years, and charged with
          specified serious offences), will be exclude from many beneficial provisions, such as
          the possibility of diversion and appearance at a preliminary inquiry.
         Life imprisonment as a sentence for children may not be excluded, arguably in
          violation of the provisions of Article 37(b) of the CRC.121


Were the Bill to be enacted, however, substantial advances in the implementation of a
children’s rights approach to child offenders would ensue. Notable areas of improvement
featured in the Child Justice Bill as tabled, and seemingly approved by stakeholders, include
the introduction of a distinct process of assessment to be carried out by probation officers
prior to the child’s first appearance in court, the legislative introduction of a series of
provisions aimed at furthering and regulating diversion (in compliance with Article 40(3)(b) of
the CRC), including the establishment of a variety of new and inexpensive diversion orders




120 Mandatory sentences ranging from five years to life imprisonment introduced in 1997 were initially
  going to include all offenders convicted of the specified offences. Activism by child rights lobby
  groups resulted in last minute changes to the legislation, which provided that, first, children aged
  below 16 would be exempted from the operation of the new statute altogether, and second, in
  respect of children aged 16 and 17 years, where minimum sentences were to be imposed upon
  those child offenders, reasons for this had to be noted on the record of the proceedings. By
  contrast, when persons over the age of 18 years were convicted and the minimum sentences were
  applicable, the presiding officer would have to find ‘substantial and compelling reasons’ allowing
  him or her to deviate from the prescribed sentence. Vigorous judicial interpretation of the legislation
  has, however, lead to the conclusions that the minimum sentences do not apply to offenders aged
  below 18 years, unless they are imposed in a discretionary fashion. See J Sloth-Nielsen ‘Juvenile
  sentencing comes of Age: Brandt v S’ 2005 Stellenbosch Law Review and J Sloth-Nielsen and L
  Ehlers ‘A Pyrrhic Victory: Mandatory and Minimum Sentences in South Africa’ (ISS Occasional Paper
  no 111, 2005)
121 At present life imprisonment may be imposed upon a person who committed an offence whilst

  under the age of 18 years, and it is estimated there are in fact around 30 people who committed
  offences as children currently serving such sentences. The Centre for Child Law at the University of
  Pretoria is currently collecting data and information as a prelude to a possible constitutional
  challenge to the use of this sentence in relation to children


                                                                                                      42
that are appropriate in an African context and can be implemented by a variety of
stakeholders in urban, rural and traditional settings.122


A signal development procedurally is the proposed preliminary inquiry, a round table initial
case conference to decide whether prosecution of necessary, or whether the matter can be
diverted. Sloth-Nielsen123 describes the proposal thus:


         ‘Envisaged as an entirely new phase in the usual criminal procedure, it was proposed
         that, at this initial meeting, the specified role players could debate the merits and
         demerits of diversion, and where the prosecutor agreed, immediately formulate and
         implement a diversion plan without the need for the child to appear in court at all.
         However, in addition to the possibility of promoting access to diversion, the
         Discussion Paper cited other reasons justifying this proposed innovation. These
         included the likelihood that specialist inquiry magistrates could be identified to
         convene these hearings, and provide an environment in which skills development
         specific to youth justice could then occur; 124 the need to ascertain that the child had
         in fact been seen for an initial assessment by a social worker or probation officer125 –
         a legislative intervention which can be seen as facilitating formal inter-departmental
         monitoring. The preliminary inquiry would further provide an opportunity to compel
         the (often very junior) prosecutor to actually peruse and consider the information in
         the docket in order to satisfy the magistrate concerned that sufficient evidence had
         been collated for the prosecution to proceed (again strategic intervention to stem the
         flow of ‘no hope’ cases into the formal court system). Finally, the historically all
         important decision on detention and release could be taken at the preliminary
         inquiry, but hopefully by judicial officers that were better trained, more child-rights
         sympathetic, and more familiar with local possible alternatives to pre-trial detention
         in prisons.’




122 See J Sloth-Nielsen ‘Chapter 22: Child Justice’ in CJ Davel (ed.) Introduction to Child Law in South
  Africa (Juta and Co, 2000), J Sloth- Nielsen ‘The influence of international Law on South Africa’s
  juvenile justice reform process’ (unpublished LLD thesis, University of the Western Cape, 2001)
123 Sloth-Nielsen, ‘The Business of Child Justice’ in Criminal Justice in a New Society: essays in honour of

Solly Leeman J Burchell and A Erasmus (eds.) (Juta and Co; 2003)
124 South African Law Reform Commission Discussion Paper 79 (Juvenile Justice) para 9.12
125 South African Law Reform Commission Discussion Paper 79 (Juvenile Justice) Para 9.6




                                                                                                         43
The preliminary inquiry has met with apparent Parliamentary approval, and seems set to
become reality. It will ensure that fulfilment of a number of important international human
rights norms, such as he right to a speedy trial, deprivation of liberty as a last resort, and
access to diversion.


A further point is that the Child Justice Bill goes a long way towards providing that, where a
child is convicted after a criminal trial, a range of alternative sentencing measures are
available to ensure that imprisonment is a last resort. Limits on this form of sentence were
also provided for in the version produced by the South African Law reform Commission, such
as a prohibition on imprisonment as a sentence for minor or petty offences (which are set
out in an attached schedule). There is thus no doubt that enactment of the Child Justice Bill
would provide a suitable legal framework for this area of child law.


The point has recently been made that, in the absence of the finalisation of the Child Justice
Bill, notable practical advances have occurred.126 First, there has been the enactment of
legislative reform via the Probation Services Amendment Act of 35 of 2002, put into effect in
2003.127 Among other things, the Act defines assessment as a (new) legal concept.128
Further, an amendment to section 4 (1) of the principal Act ensures that the duty of
performing assessments and the related issue of reception of accused persons and their
referral form part of the core mandate of the probation service.


Most importantly, the amending legislation makes provision for a new clause 4B which
provides for the assessment of any arrested child by a probation officer as soon as is


126 J Sloth-Nielsen 'A short history of time: the development of social welfare service to children in
  trouble with the law 1996 – 2006' (unpublished paper prepared for the conference Child Justice
  Reform: Children’s Rights under Construction' Open Society Foundation for South Africa and the
  Child Justice Alliance, 1 and 2 August 2006)
127 Probation Services Amendment Act 35 of 2002; but note should be taken that even before the

  enactment of this legislation judicial pronouncements have been made on assessment. For
  instance, see S v J and Others 2000 (2) SACR 310. In this judgment, it was provided that ‘[f]rom the
  recommendations of the IMC and the South African Law Review Commission Project Committee on
  Juvenile Justice, it appears that the purpose of an assessment report in respect of a juvenile
  offender is, inter alia, to establish the prospects of the child in question being diverted away from
  and dealt with outside the criminal justice system, and to assist the prosecutor and other relevant
  officials in determining whether or not to continue with the prosecution of the child’
128 Assessment is defined as ‘a process of developmental assessment or evaluation of a person, the

  family circumstances of the person, the nature and circumstances surrounding the alleged
  commission of an offence, its impact upon the victim, the attitude of the alleged offender in relation
  to the offence and any other relevant factor.’ (Section 1 of the Probation Services Amendment Act,
  amending section 1 of the principal Act 116 of 1991)


                                                                                                     44
reasonably possible, but before his or her first appearance in court, with the proviso that if a
child has not been assessed before first appearance, such assessment must take place
within a period specified by court which may not exceed 7 days following his or her first court
appearance. Thus assessment, and the requirement that arrested children must be
assessed as soon as reasonably possible, now has a legislative basis even in the absence of
the enactment of the relevant provisions of the Child Justice Bill.


Second, a secure care facility programme has been in a process of ongoing development at
provincial level, to provide alternative accommodation to awaiting trial children in lieu of
prison. Currently, the idea that secure care facilities are more appropriate for the detention
of children awaiting trial seems to have taken root.129 Some time during later 2004 – 2005
the numbers of children detained in secure care began to outstrip the numbers held in
prisons awaiting trial, and by May 2005 it was recorded that, there were 2047 children
awaiting trial (CAT) in Secure Care facilities. Added to the increased availability of secure care
placements has been a marked drop in the numbers of children awaiting trial in prisons, so
that the trend that secure care has replaced prison as the primary placement avenue has
continued. However, although the number of children awaiting trial in prison has gone down
in recent years to half the levels of even two years ago,130 there is still scope for
improvement.131


Third, there has been considerable judicial activism in interpreting existing law – especially
with regard to sentencing – in a manner that complies with CRC and ACWRC.132 Both treaties


129 The Child Care Act was amended in 1999 to provide for a definitional clause regarding Secure Care
  facilities. Just recently, the principle of detention as a last resort was also embedded in the White
  Paper on Corrections (2005) in which it is stated that ‘[c]hildren under the age of 14 have no place
  in correctional centre. Diversion, alternative sentences, and alternative detention centres run by the
  Department of Social Development and the Department of Education should be utilized for the
  correction of such children’. See Department of Correctional Services (March 2005) White Paper on
  Correctional Services Para 11.2.3
130 As at 31 December 2005, there were 2,354 children under the age of 18 in prison. Among these,

  1,217 of them are awaiting trial while 1137 were serving sentences. This means that there are 706
  less children in prisons in South African than there were on 31 March 2005. See Office of the
  Inspecting Judge Annual Report 2005/2006, 16
131 Some of the reasons for the reduction of the number of children in prison awaiting trial may also be

  attributed to the Interim National protocol for the management of Children Awaiting Trial and other
  more targeted initiatives aimed at reducing the number of children awaiting trial like the Children
  Awaiting Trial Project in the Western Cape. See C Camilla and A Dissel ‘Children awaiting trial in
  prison’ (2006) Article 40, volume 8, No. 1
132 Discussed by Dr A Skelton at the conference ‘Child Justice Reform: Children’s Rights under

  Construction’ Open Society Foundation for South Africa and the Child Justice Alliance, 1-2 Aug 2006



                                                                                                     45
have been extensively cited in these cases as justification for the relevant decisions, which
are discussed further below in section 8 as examples of best practice.


5. International and regional treaties

The Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography
entered into force on 18 January 2002. It was ratified by South Africa on 30 June 2003 and
the first report under this Optional Protocol was due on 30 June 2005. It is evident that this
report has not been released, and possibly suffers the same fate as the second overall
country report to the Committee on the Rights of the Child which is also either incomplete or
still under wraps. It was due in 2003. Provisions incorporating aspects of the Optional
Protocol are to be found in the Children’s Act 38 of 2005 and the Children’s Amendment Bill,
2006, as well as in the Sexual Offences Bill, which has been re-tabled for Parliamentary
consideration in the second half of 2006.133 Draft trafficking legislation has been prepared
by the South African Law Commission, although it is unclear when this is likely to be finalised.


The Hague Convention on International Child Abduction was ratified by South Africa in 1996,
and implemented domestically via the Hague Convention on the Civil Aspects of International
Child Abduction Act 72 of 1996. Courts have been seized with many cases in which the
provisions of this act have had to be interpreted and applied,134 and the Act was subjected to
a constitutional challenge in the case of Sonderup v Tondelli,135 on the basis that the Act
required the prompt return of an abducted child to the country of his or her residence even
where this may be contrary to the best interests of that individual child. The Constitutional
Court rejected this challenge, with reference to the limitations clause contained in section 36
of the Constitution, noting that it was in the best interests of children generally not to be
abducted abroad in circumstance which frustrate the access and custody rights of parents,
and that the procedural remedy granted by the Hague Convention was thus in the best
interests of children. The court found further that Hague Convention proceedings made
provision for the consideration of both short and long term interests of the children who are

133 The Sexual Offences Bill, drafted also by a project committee of the South African Law Commission
  and tabled in 2002, was debated extensively in 2003 (Bill 50 of 2003), along with the Child Justice
  Bill. It suffered the same fate as the latter, however, in that it was not re-tabled after the 2004
  national elections. It has, however, recently been re-tabled (August 2006), and indications are that
  Parliament is ready to revisit this Bill and to make progress towards finalising it this year
134 See for instance, Kirsch v Kirsch (1999) 2 All SA 193 (C), Smith v Smith 2001 (3) SA 845 (SCA)

  and Penello v Penello 2004 BCLR 243 (SCA)
135 2001 (1) SA 1171 (CC)




                                                                                                   46
the subject of individual applications, and that courts are furthered empowered to tailor
orders and impose substantial conditions in order to mitigate any likely interim prejudice to
the child. The Court noted, finally, that section 28(2) of the Constitution provided ‘an
expansive guarantee that a child’s best interests are paramount.’136 The designated Central
Authority for the purposes of the Hague Convention is the Office of the Family Advocate,
attached to each High Court.137


The Hague Convention on Inter-country Adoption (1993) was ratified by South Africa in 2003,
with the date of entry into force set at 1 December 2003. Ratification followed the signal
constitutional court decision in Minister for Welfare and Population Development v
Fitzpatrick 2000 CCT08/00, a case concerning a provision of the Child Care Act 74 of 1983
that permitted adoption only by South African nationals. The applicants, a couple of non-
South African nationality who had been living and working in the Republic for some years,
and who had fostered South African child during their tenure, wished to formally adopt the
child pending their transfer (for work purposes) back to their country of origin. They thus
sought a declaration of constitutional invalidity in respect of the relevant section, both on the
basis of the non-discrimination clause in the constitution, and in furtherance of the best
interest of the child concerned. The Constitutional Court upheld the application, noting that
sufficient protection against untoward adoption practice existed via the children’s court
process. Unfortunately, this decision, coupled with the absence of domestic legislation to
give effect to the Hague Convention on inter-country adoption has opened the floodgates to
inter-country adoptions of South African children, and the mechanism of the children’s court,
which is the court assigned the power to effect adoptions, are sometimes subverted. A recent
case in Gauteng illustrated this disjuncture between government policy on inter-country
adoption and the practices of sometimes unscrupulous professionals involved in adoption for
gain.


The case concerned an application to the High Court to have an American couple appointed
as the guardian of a minor South African child, whom they then intended to remove from the


136Para 1184F
137This office, set up pursuant to the adoption of the Mediation in Certain Divorce Matters Act 24 of
  1987, provides a service relating to children whose parents are involved in divorce proceedings. The
  functions of the Office of the Family Advocate include certifying that the best interests of such
  children have been adequately dealt with by the parties insofar as post-divorce care and
  maintenance arrangements are concerned, or investigating the family circumstances and providing
  expert independent evidence to the Court where there may be threats to the child’s best interests


                                                                                                   47
Republic to grow up in the United States. Favourable social work reports concerning their
ability to act as parents, commissioned at their expense, accompanied the application.
Intervening as amicus curiae were the Centre for Child Law and the National Department of
Social Development, opposing the use of guardianship proceedings to circumvent the
children’s court proceeding in this way, and to get the High Court to effectively sanction an
inter-country adoption. Affidavits made it clear that the Department did not support this
route, as it obviated the control and procedure of the children’s court, and that the
international law principle of subsidiarity was not complied with when insufficient efforts had
obviously been made to place the infant in her country of origin.138 The amicus intervention
was successful in preventing the removal of the child from the country. However, the matter
is currently under appeal to the Supreme Court of Appeal.


The provisions of the Hague Convention on Inter-Country Adoption are comprehensively
addressed in the Children’s Act 38 of 2005, and the Department of Social Development will
serve as the Central Authority once the legislation is promulgated. The Department has
reported that it is already in contact with other central authorities in both Hague Convention
and non-Hague Convention countries, notably in African context, Botswana. Approximately
200 inter-country adoptions were supervised by the Department in 2005.


As regards sexual offences, it has been mentioned that Parliament was presented with a new
Bill to regulate this area (in respect of children and all other victims) in 2003 after a lengthy
drafting process undertaken by the South African Law Reform Commission, assisted by a
multi-disciplinary project committee. The legislation was debated in Portfolio Committee
throughout 2003 (as was the Child Justice Bill discussed below), but thereafter did not re-
enter the Parliamentary process until July 2006. A new Sexual Offences Bill (Bill _ 2006)
which differs in significant ways from the original draft prepared by the South African Law
Commission, has just been re-tabled. In summary, the Bill as it now reads:
       o   Repeals the common law offence of rape and replaces it with a new statutory
           offence of rape, applicable to all forms of sexual penetration without consent,
           irrespective of gender
       o   Repeals the common law offence of indecent assault and replacing it with a new
           statutory offence of sexual assault, applicable to all forms of sexual violation without
           consent


138   De Gree case, copy on file with the author


                                                                                                48
    o   Creates particular offences to address particular vulnerability of child victims
    o   Eliminates discriminatory differentiation being drawn between the age of consent for
        boys and girls in respect of consensual sexual acts, by reducing the age of consent
        for boys from 19 to 16 years, and providing special provisions relating to the
        prosecution and adjudication of consensual acts between children older than 12
        years but younger than 16 years
    o   Affords victims the right to apply that the alleged perpetrator be tested for HIV, and
        their rights to receive post-exposure prophylaxis
    o   Establishes a National Register for Sex Offenders


There are concerns that have been raised that many protective mechanisms relating to the
prosecution and possible diversion of alleged child offenders have been removed from the
latest drafts, confirming earlier indications that Parliament was not in favour of diversion
being an option for any child charged with a sexual offences. This is despite the availability of
at least some credible dedicated sex offenders diversion programmes currently in use by
courts in some jurisdictions in South Africa for child offenders accused of non-violent sexual
offences. The objective of the legislation is, however, provided as being to give effect to
international legal instruments including CEDAW and the CRC insofar as they create the
obligation to combat violence against women and children. Whilst the new legislation will
undoubtedly improve the present legal framework in relation to sexual offences (for example
in the repeal of discriminatory rules of evidence relating to the requirement that the rape
must be disclosed to a third party at the earliest possible opportunity, failing which an
adverse inference will be drawn in relation to the credibility of the complainant), the concerns
of civil society about the changes apparently brought about in the parliamentary process
must be noted.


In the child labour arena, South Africa has ratified the ILO Convention 182 on the
Elimination of the Worst Forms of Child Labour. The South African Cabinet in 2003 approved
a Child Labour Programme of Action, designed to set policy prerogatives in combating child
labour. In addition, several pilot projects aimed at eliminating the worst forms of child labour
are in the process if being implemented through the office of the programme Towards the




                                                                                               49
Elimination of Child Labour (TECL), a technical assistance programme to the Department of
Labour.139




6. Identification of best practices

As noted at the outset, the incorporation of justiciable children’s rights at the level of the
constitution has provided a sound platform for the development of a children’s rights
jurisprudence in South Africa, one which not only looks to children’s civil and political rights
and those in the sphere of private law and relations, but also in relation to socio- economic
rights and children’s relationships with the state and with society more generally.


As regards legislative developments, the above chapter describes an array of attempts to
domesticate international law in local context. A key success story is the rapid
(comparatively) finalization of the Children’s Act 38 of 2005, although promulgation of this
act must await the finalisation of the Children’s Amendment Bill (2006) and the completion
of all accompanying regulations to the Act as a whole. There is considerable political will
behind this endeavour, however, and the prospects for implementation by 2008 seem
auspicious.


The same cannot be said of the other major child rights legislative draft, the Child Justice Bill
49 of 2002. Despite considerable Governmental and NGO commitment to seeing the Bill as
originally introduced, being passed, the Bill languishes and is not currently before
Parliament. This seems indicative of two things: first, a lack of political will at the
Parliamentary level to complying with the CRC requirement concerning the need for separate
laws and procedures for children in conflict with the law, and second, a deepening
pessimism about crime levels and children’s involvement in crime, which may see crucial
anti-child rights provisions being grafted onto the original Bill.


In one sense, however, the Child Justice Bill has been a best practice in African context, as
the original provisions have served as a beacon for law reformers in other parts of Africa


139See for example, four recent publications concerning Children Used by Adults to Commit Offences
(as a worst form of child labour), including a situational analysis and a report on a consultation
process with children (available at www.communitylawcentre/org.za/publications.php/cubac
accessed 7 August 2006)


                                                                                                 50
(Lesotho, Malawi and South Sudan being three examples in point). Further some of the
innovative programmes (e.g. diversion programmes) and institutions (e.g. the Mangaung One
Stop Child Justice centre) have been identified as learning sites and have been emulated
elsewhere (e.g. Namibia, Zambia). In the absence of a definitive legislative code, however,
our courts have made great strides in giving effect to children’s rights in the criminal justice
system, albeit that this has inevitably occurred on an ad hoc basis, and that it has mainly
concerned the area of imposition of sentence. Brandt v S (2004) JOL 13262 (SCA, DPP v P
(2005 363/2005 (SCA)), and S v Kwalase (2000 (2) SACR 135 ( C)) are all unique in that the
judgments draw on the CRC, ACRWC and other UN documentation such as the Beijing Rules
in support of their analysis and interpretation. The provisions of the interim Constitution
pertaining to the right to dignity and to freedom and security of the person lead the
Constitutional Court to abolish juvenile whipping as a sentence in one of its earliest
judgments,140 in compliance with international law developments in this area.


As regards the implementation of socio-economic rights in the children’s rights sphere, there
have been significant improvements in (for example) de-racialising the education system and
the provision of a basic form of social assistance to children. However, many challenges
remain in the ongoing project relating to the transformation of our society.




7. Gaps and recommendations

It is, in my view, chiefly in the area of equality and access to socio-economic rights where
gaps and room for improvements exists. The ills of the education system - poor facilities, fee
requirements, inadequate teacher support and training, and so forth – are routinely
documented in press and media reports, and South Africa does not comply with international
treaty law insofar as the requirement that primary education be free and compulsory is
concerned. Further, there are large numbers of children living in situations of extreme
poverty, who have no access to immediate relief (food, water, health care). Recent data
suggests that the relative deprivation of these children (and their families) is increasing,
despite good economic growth and expansion of the economy, with concomitant greater
average income levels in recent times.



140   S v Williams 1995 (7) BCLR 861 (CC)


                                                                                               51
At the level of civil and political rights four main gaps can be identified. First, the Legislature
has failed to use the opportunity provided by the process of consideration of the Children’s
Act 38 of 2005 to definitively outlaw violence against children, including domestic corporal
punishment. The South African Law Commission had proposed a ‘middle ground’ option, viz,
removing by law the parental defence of reasonable chastisement, without expressly banning
physical chastisement of children within the family. Even this did not meet with Parliamentary
approval, evidently due to deep seated beliefs about children’s role within the family and
household, and the rights of parents to impose discipline. The Children’s Act therefore
contains no provisions on corporal punishment, despite intensive lobbying from non-
governmental organisations during the Parliamentary process.


Second, implementation of children’s participation rights in legal proceedings affecting them
have been contentious since enactment of the 1996 Constitution, and it cannot be said that
there is sufficient guarantee that their right to legal representation if substantial injustice
would otherwise result has been adequately assimilated in either law or practice.


Third, the rights of refugee and migrant children who find themselves within South Africa’s
are a neglected area, despite initial efforts to improve their protection through the Children’s
Act 38 of 2005. The fact that the protective measures were excised from the Children’s Act
when it was considered in Parliament does not bode well, as there are no indications the
child specific provisions concerning migrant or refugee children are likely to find their place
in any other statute.


Finally, no great progress has yet been made in addressing the right of children living under
customary law. Although the seminal case of Bhe and others v Magistrate Khayelitsha and
others141 has to some extent addressed the inheritance rights of girl children under
customary law,142 in affirming that the rule of primogeniture which operates to ensure
succession to the oldest male relative was unfairly discriminatory on the basis of sex and

141 2005 (1) BCLR 1 (CC)
142 The case involved the inheritance rights of two minor girls, whose biological father was deceased,
  leaving a house- their home. The house was claimed by his eldest male relative (his father), who was
  going to sell the house and render them homeless. The Court, referring to both CRC and ACRWC,
  opined that the differential treatment of children born in or out of wedlock constituted unfair
  discrimination on the ground of birth (although evidenced produced in the case was insufficient to
  determine whether bride wealth had or had not been paid by their father, which is the determining
  factor as to legitimate or illegitimate status under customary law). Further, the Court affirmed that
  the customary rule of primogeniture that prohibited both daughters and younger sons from
  inheriting from their parents, as well as excluding women, was constitutionally offensive


                                                                                                    52
gender, this has not been adequately resolved in national legislation to harmonise various
aspects of customary law with constitutional values. Such legislation has been in preparation
for some years, but has not been tabled or finalised.


The challenges that lie ahead are surely bound up with South Africa’s transformation as a
society, which is work in progress, and with the implementation of the laws and policies that
have been set in place to further the rights of children. As well known South African
constitutional lawyer, Advocate Geoff Budlender, has often remarked, ours is not a
government that is unwilling to make progress in the implementation of children’s rights as a
transformative issue in our society, and consequently, adopting an oppositional stance is not
always a productive or useful strategy. Nevertheless, resort to litigation to seek effective
remedies for violation or non-implementation of the rights of children is seemingly on the
increase, and targeted campaigns to improve the plight of children living in poverty have born
some fruit. South Africa is fortunate in having an active and experienced children’s rights non
governmental sector supporting the harmonisation of laws and policies with international
treaty obligations, and, together with government, there is a basis for great strides to be
made in the next decade of our constitutional democracy.




                                                                                               53
Bibliography

A. Books and chapters in books

Chapter 27 ‘Children’ in J De Waal, I Currie and G Erasmus The Bill of Rights Handbook (2nd
edition) (Juta and Co, Cape Town, 2005)

Chapter 11 ‘Social Welfare Rights’ in S Khoza (ed.) Socio-economic Rights (2nd edition),
Community Law Centre, University of the Western Cape (forthcoming, 2006)

L Du Plessis and H Corder ‘The genesis of the sections entrenching specific rights’ in L Du
Plessis et al (eds.) Understanding South Africa's Transitional Bill of Rights (1994)

IDASA ‘Monitoring child socio economic rights in South Africa: achievements and challenges’
E Coetzee and J Streak (eds.) (IDASA: Cape Town, 2004)

Lawyers for Human Rights Children and the Law S Padayachee (ed.) (2nd edition, 2004)

A Skelton, A ‘Crime control vs Children’s Rights’ in CJ Davel (ed.) Children’s rights in a
transitional Society (Protea Book House, Pretoria, 1998)

J Sloth-Nielsen ‘Children’ in D Davis and H Cheadle The Constitution: the Bill of Rights (2nd
edition) (Juta and Co, Cape Town, 2005)

J Sloth- Nielsen ‘Chapter 22: Child Justice’ in CJ Davel (ed.) Introduction to Child Law in
South Africa (Juta and Co: Cape Town, 2000)

J Sloth- Nielsen ‘The Business of Child Justice’ in J Burchell and A Erasmus (eds.) Criminal
Justice in a Transitional Society (Juta and Co, Cape Town, 2003)

J Sloth-Nielsen and B Van Heerden ‘The political economy of child law reform: Pie in the Sky?’
in CJ Davel (ed.) Children’s rights in a transitional society (Protea Book House, Pretoria,
1998)


B. Articles

Children’s Institute Fact Sheet no 3 (2006) ‘Facts about the take up of the Child Support
Grant’

D Chirwa ‘The merits and demerits of the African Charter on the Rights and Welfare of the
Child’ (2002) 10 International Journal on Children’s Rights 157

P De Vos ‘Pious Wishes or Directly Enforceable Human Rights? Social and Economic Rights
in South Africa’s 1996 Constitution’ 1997 (13) South African Journal on Human Rights 67

R Keightley ‘The child’s right to nationality and the acquisition of citizenship in South African
Law’ 1998 (14) South African Journal on Human Rights 411

A Skelton ‘Developing a juvenile justice system for South Africa: International instruments
and restorative justice’ Acta Juridica 2000


                                                                                                54
J Sloth-Nielsen 'Children's rights in the South African Courts: An overview since ratification of
the UN Convention on the Rights of the Child' (2002) 10 The International Journal of
Children's Rights 137

J Sloth-Nielsen ‘Of newborns and nubiles: challenges to children’s rights in the era of HIV/
AIDS’ 2005 International Journal on Children’s Rights 73

J Sloth Nielsen ‘Juvenile sentencing comes of age: Brandt v S’ 2005 Stellenbosch Law
Review 98

J Sloth Nielsen and B Van Heerden ‘Proposed Amendments to the Child Care Act in the
context of Constitutional and International Law Developments in South Africa’ 1996 (12)
South African Journal on Human Rights 247

FN Zaal and A Skelton ‘Providing Effective Representation for Children in a new constitutional
era: Lawyers in the Criminal and Children’s Courts’ 1998 (14) South African Journal on
Human Rights 539


C. Unpublished reports and papers

Community Law Centre ‘What the Children Said’ (1999)

Community Law Centre ‘Report on Children’s Rights: They should listen to our side of the
story’ (2002)

Community Law Centre Socio- Economic Rights Manual (2nd edition) 2006 (forthcoming)

Constitutional Assembly Explanatory Memorandum: Draft Bill of Rights (October 1995)

Department of Correctional Services (March 2005) ‘White Paper on Correctional Services’

L Ehlers ‘Children’s Participation on Law Reform in Southern Africa’ (unpublished MPhil
thesis, University of Cape Town, 2005)

L Ehlers ‘Child Justice: An analysis of the child justice reform process in South Africa and a
comparative analysis of child justice in the United States’ Criminal Justice Project Occasional
Paper no 1, Open Society Foundation of South Africa (2006, forthcoming)

HSRC Workshop on the State of the Nation, Durban, 8 – 10 March 2006

M Jacobs, M Shung and C Smith ‘Child Gauge 2005’ Children’s Institute, Cape Town (2005)

D Kassan ‘The Child’s Right to a Voice in Divorce Proceedings’ unpublished LLM dissertation
(cum Laude), University of the Western Cape, 2004

Mail and Guardian Week 2 June – 9 June 2006

C Nevill and A Dissel ‘Children awaiting trial in prison’ (2006) Article 40, volume 8, No. 1




                                                                                               55
G Odongo ‘The domestication of international law in juvenile justice reform in Africa’
(unpublished LLD thesis, University of the Western Cape; 2006)

‘Provincial Administration of the Western Cape (PAWC) commissions a review of facilities’
(2004) Article 40, volume 6, No. 4

 A Skelton ‘The influence of the theory and practice of restorative justice in South Africa with
special reference to child justice’ (unpublished LLD thesis, University of Pretoria; 2005)

A Skelton ‘The South African Child Justice Bill: Transition as Opportunity’ in E Jensen and J
Jepsen (eds.) Juvenile Law Violators, Human Rights and the Development of New Juvenile
Justice Systems (Hart Publishing, Oxford, 2006)

J Sloth-Nielsen ‘The influence of International Law on Juvenile Justice Reform in South Africa’
(unpublished LLD thesis, University of the Western Cape; 2001)

J Sloth-Nielsen ‘Interdicts and Child Justice - a big-stick approach’ (2003) Article 40, volume
5, No 4

J Sloth-Nielsen ‘The Business of Child Justice’ in Criminal Justice in a New Society: essays in
honour of Solly Leeman J Burchell and A Erasmus (eds.) (Juta and Co; 2003)

J Sloth-Nielsen ‘Child- Headed Households: a guide to laws, policies and social advocacy’
Community Law Centre, University of the Western Cape (2004)

J Sloth-Nielsen ‘Structural interdicts again - the Zuba saga continues’ (2004) Article 40,
volume 6, No 1

J Sloth-Nielsen ‘Developing a child justice system through judicial practice’ (2005) Article 40,
volume 7, No 4

J Sloth-Nielsen ‘Measures to strengthen children’s rights in the Constitution of Sudan’ Save
the Children Sweden (Kenya office) 2005

J Sloth Nielsen and L Ehlers ‘A Pyrrhic victory: Mandatory and Minimum Sentences in South
Africa’ (ISS Occasional Paper no 111, 2005)

J Sloth-Nielsen ‘Strengthening the protection of children’s rights in African context’
unpublished paper presented at the international conference on children’s rights, Ghent,
18th and 19th May 2006

J Sloth-Nielsen ‘A short history of time: the development of social welfare service to children
in trouble with the law 1996 – 2006’ (unpublished paper prepared for the conference ‘Child
Justice Reform: Children’s Rights under Construction’ Open Society Foundation for South
Africa and the Child Justice Alliance, 1 and 2 August 2006)

J Sloth-Nielsen 'The child's rights to social security to social services and the prevention of
child abuse: some conclusions in the aftermath of Grootboom' Vol 17(2) South African
Journal on Human Rights 210




                                                                                                  56
South African Law Reform Commission First Issue Paper on the Review of the Child Care Act
(1998)

South African Law Reform Commission Report on the Review of the Child Act (2002)

South African Human Rights Commission 3rd Socio-Economic Rights Report (2000–2)

A Van den Burg ‘An examination of the extent to which South Africa is meeting its legal
obligations with regard to the protection of undocumented foreign migrant children’
(unpublished LLM thesis, University of the Western Cape; 2006)


D. Internet sources

Afrec report Costing the Child Justice Bill available at www.childjustice.org.za

D Bradshaw (et al) (2004) ‘South African National Burden of Disease Study 2000: Estimates
of Provincial Mortality’ in www.childrencount.ci.org.za

Centre for Child Law www.childlawsa.com

Children’s Rights Project, Community Law Centre www.communitylawcentre.org.za

Proudlock, P ‘Widening the reach of social assistance’ ACESS Newsletter (November 2003)
www.acess.org.za/documents/newsletter/nov03.pdf (accessed 7 August 2006)

South African Info ‘Spreading the social security net’
www.southafrica.info/ess_info/sa_glance/social_delivery/social_grants.htm (September
2005) (accessed 07 August 2006)

South African Info ‘SA’s Social Security Agency’
www.southafrica.info/ess_info/sa_glance/social_delivery/update/socialsecurityagency.htm
(accessed 7 August 2006)


E. Cases

Bhe and others v Magistrate Khayelitsha and others 2005 (1) BCLR 1 (CC)

Brandt v S (2004) JOL 13262 (SCA)

Centre for Child Law and Others vs. MEC for Education and Others Case No. 19559/06
(Unreported, judgment given 30 June 2006)

Christian Education South Africa v Minister of Education 2000 (10) BCLR 1951 (CC)

Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC)

DPP v P 2005 363/2005 (SCA)

Du Toit v Minister for Welfare and Population Development 2003 (3) SA 198 (CC)



                                                                                          57
De Gree case (unreported), copy on file with the author

Government of the Republic of South Africa and Others v Grootboom and Others 2000 (11)
BCLR 1169 (CC)

Grootboom v Oostenberg Municipality and Others 2000 (3) BCLR 277 (C)

In re: The Schools Education Bill of 1995 (Gauteng) 1996 (4) BCLR 537 (CC)

J and anon v Minister of Home Affairs 2003 (5) BCLR 463 (CC)

Khosa and others v Minister of Social Development and others CCT 12/03

Kirsh v Kirsh (1999) 2 All SA 193 (C)

Minister for Welfare and Population Development v Fitzpatrick and Others 2000 CCT08/00

Minister of Health and Others v Treatment Action Campaign and Others 2002 (10) BCLR
1033 (CC)

Penello v Penello 2004 BCLR 243 (SCA)

Smith v Smith 2001 (3) SA 845 (SCA)

Sonderup v Tondelli 2001 (1) SA 1171 (CC)

Sorsa and Sorsa v Simonstown School (unreported)

Soobramoney v Minister of Health, KwaZulu-Natal 1997 (12) BCLR 1696 (CC)

Soller NO and another v G 2003 (5) SA 430 (WLD)

S v J and Others 2000 (2) SACR 310 (C)

S v Kwalase 2000 (2) SACR 35 (CPD)

S v M (case No. 435/04 and 237/04, judgment delivered 11/11/2005)

S v Williams 1995 (7) BCLR 861 (CC)

S v Zuba and 23 similar cases (cases no CA40/2003 and 207/2003, Eastern Cape Division,
judgment handed down on 2/10/2003)

V v V 1998 (4) SA 169 (C)


F. Legislation

Child Care Act 74 of 1983

Child Justice Bill 49 of 2002


                                                                                      58
Children’s Act 38 of 2005

Education Policy Act 27 of 1996

Exemption of Parents from the Payment of School Fees Regulations, 1998 (School Fees
Regulations)

Immigration Act 13 of 2004

Mediation in Certain Divorce Matters Act 24 of 1987

Probation Services Amendment Act 35 of 2002

Refugees Act 130 of 1998

Sexual Offences Bill 50 of 2003

Social Assistance Act 59 of 1992

Social Assistance Act 13 of 2004

Social Security Agency Act 9 of 2004

South African Constitution Act 108 of 1996

South African Schools Act 84 of 1996

Welfare Laws Amendment Act 106 of 1997


G. International and regional instruments


African Charter on the Rights and Welfare of the Child (1990)

Convention on the Rights of the Child (1989)

International Covenant on Civil and Political Rights (1966)

International Covenant on Economic, Social and Cultural Rights (1966)

Convention on the Elimination of All Forms of Discrimination against Women (1979)

Hague Convention on the Civil Aspects of International Child Abduction (1980)

Hague Convention on Protection of Children and Co-operation in respect of Inter-country
Adoption (1993)

Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (2000)




                                                                                             59
Annex 1: About the author

Prof Julia Sloth-Nielsen is currently professor in the Law faculty of the University of the
Western Cape. She was previously associate professor and co-ordinator of the Children’s
Rights Project at the Community Law Centre at that university, and during her seven years in
that position served on the South African law Commission Project Committee on Juvenile
Justice as well as the South African Law Commission Project Committee on the Review of the
Child Care Act, which culminated in the passage of the Children’s Act 38 of 2005. She has
consulted widely within Africa on child law reform for governments as well as international
agencies, and has published widely in the children’s rights field, both within South Africa and
internationally. She is on the editorial board of the international Journal on Children’s rights,
teaches a LLM children’s rights in Africa module, and has supervised numerous
postgraduate theses in children’s rights-related areas. Her LLD thesis (awarded in 2001)
dealt with the influence of international law on South Africa’s juvenile justice reform process.




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