2kul2Btru : what children would say about the jurisprudence of Albie Sachs
| Date | 01 January 2010 |
| Author | Jacqui Gallinetti |
| Published date | 01 January 2010 |
| Pages | 108-123 |
| DOI | 10.10520/EJC153253 |
*
BA LLB LLM (UCT) PhD (UWC), Senior Lecturer, University of the Western Cape.
1
2007 12 BCLR 1312 (CC) (hereafter S v M). This matter involved an application for leave to appeal
to the Constitutional Court against a sentence imposed in a criminal case where the accused, a
mother of three minor children, had been convicted of fraud and sentenced to direct imprisonment.
The application focused on the duties of a court when sentencing a primary caregiver, given the
requirement in s 28(2) of the Constitution that the best interests of the child are of paramount
importance in every matter concerning the child. The case involved an investigation into what these
duties are and whether they had been observed in this particular case. In finding that s 28(2) had
not been properly applied in this case, the court added a new dimension to the classic sentencing
triad referred to in S v Zinn 1969 2 SA 537 (A), namely, the nature of the crime, the personal
circumstances of the accused and the interests of the community. The Court held that children of
an accused primary caregiver would weigh as an independent factor in the Zinn inquiry if, according
to the Zinn approach, there could be more than one appropriate sentence, one of which was a non-
custodial sentence.
2
Kemp ‘Steering a ship called dignity’ Mail and Guardian (2009-07-3) 11.
2kul2Btru: What children would say
about the jurisprudence of Albie Sachs
Jacqui Gallinetti
*
In a recent interview framed against the backdrop of his majority judgment in M v The
State (Centre for Child Law Amicus Curiae)
1
Justice Sachs stated: ‘I started to see
[the children] … as three threatened, worrying, precarious, conflicted young boys
who had a claim on the court’ and later, ‘I see the role of judges in the world of
diversity and conflict as striving for the protection of human dignity. The [Constitu-
tional] Court is very, very important in terms of the basic norms, standards and
values of the society, which continually evolve and develop.’
2
These two statements signify, first, the critical role that the Constitution and
the Constitutional Court Justices play in the protection and promotion of the Bill
of Rights; second, they acknowledge that rights have to be balanced constantly
against changing and competing needs and interests; and finally, they recognise
that the claims made to enforce rights – and in S v M, the focus is on children’s
rights – are not abstract or theoretical interrogations, but involve living individual
children who find themselves in desperate situations. These two statements
further provide some broad and specific insights into Justice Sach’s approach to
his work at the Constitutional Court in relation to claims involving children’s rights.
What children would say about the jurisprudence of Albie Sachs 109
3
Tobin, ‘Increasingly seen and heard: The constitutional recognition of children’s rights’ (2005) 21
SAJHR 86 at 122.
4
Id 123.
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2000 10 BCLR 1051 (CC) (hereafter Christian Schools case). The central issue in this case was
whether the enactment of a blanket prohibition of corporal punishment in schools violated the right of
parents of children in independent schools to freely practice their religion. The main argument of the
applicant was that the teacher’s right to impose corporal punishment (with parental consent) was a vital
element of their religion and that the blanket ban on corporal punishment contained in s 10 of the South
African Schools Act constituted an interference with their religious and cultural beliefs and was therefore
unconstitutional. The Minister of Education (who opposed this application) took support for the abolition
of corporal punishment in schools from the equality clause, the right to human dignity, the right to
freedom of security of the person (which includes the right not to be treated or punished in a cruel,
inhuman or degrading way) and the entrenched constitutional rights of children to be protected from
maltreatment, neglect, abuse or degradation. The Court found s 10 of the South African Schools Act
to be reasonable and justifiable as the effect thereof did not substantially infringe the applicant’s right
to freedom of religion, belief and opinion as enshrined in s 15 of the Constitution.
9
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
at 151.
It has been noted that judicial conservatism is a hurdle that needs to be
overcome in order to realise the constitutional rights of children – ‘… the risk is
always present that the constitutional rights of children can remain a “chimera”
because of “judicial myopia”’.
3
However, it has also been recognised that the
South African experience in relation to the realisation of the constitutional rights
of children provides grounds for cautious optimism when measured against the
failure of other countries to translate the constitutional recognition of children’s
rights into judicial acceptance thereof, and that judges are engaging with the
content of children’s rights.
4
Indeed, the South African Constitutional Court has
increasingly developed the rights of children in section 28 of the Bill of Rights
through such progressive judgments as Minister of Welfare and Population
Development v Fitzpatrick,
5
Fraser v Children’s Court Pretoria North
6
and Tasco
Luc De Reuck v Director of Public Prosecutions
7
to name a few. However, it is
argued that the jurisprudence of Just ice Sachs represented in the three judgments
discussed by this article has perhaps contributed the most to the enlightened
constitutional interpretation of children’s rights and has provided the benchmark
for the positioning of children’s rights in the broader South African legal system.
This view of Justice Sach’s contribution to the development of a children’s
rights jurisprudence in South Africa is echoed by children’s rights scholars. Sloth-
Nielsen praises Sachs’ treatment of the need to appoint curators ad litem in
Christian Education South Africa v The Minister of Education
8
as an exemplary
illustration of the willingness of individual judges to raise children’s rights issues
mero motu.
9
Skelton observes that the majority judgment of Sachs J in S v M is
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