Children’s Law
| Jurisdiction | South Africa |
| Citation | 2019/2020 YSAL 97 |
| DOI | https://doi.org/10.47348/YSAL/v1/i1a2 |
| Date | 10 March 2021 |
| Author | Barratt, A. |
| Pages | 97-125 |
| Published date | 10 March 2021 |
97
1. INTRODUCTION
There were several important developments in Chi ldren’s Law during the
review period (June 2019 to July 2020). Two important cases concerned bi rth
certificates and ot her official documentation. As noted i n Centre for Child
Law v Minister of Basic Education1 and in Centre for Child L aw v Director-
General, Department of Home Af fairs2 lack of such documentation can impede
children’s access to important social go ods such as education, social gra nts
and healthcare. Statistica lly, children who lack official documentation a re
likely to come from indigent and marg inalised com munities. The cases
discussed some of t he difficulties i nvolved in the registration of births a nd
the securement of birt h certificates. Centre for Child La w v Director-General,
Department of Home Affairs ru led that unmarried father s can provide notice of
birth, thus facilitat ing registration of birth procedures and wideni ng access
to important official doc umentation. Centre for Child Law v Minister of Basic
Education ruled that schools may not exclude learners who are unable to
produce official documentation, thus en suring that a lack of documentation
does not impede children’s rights to basic education.
The right to basic education was emphasised in t he Centre for Child Law
v Minister of Basic Education case, where the court stre ssed that this r ight is
enjoyed by all children i n South Africa, including foreign nationals. Foreig n
children can not be excluded because they lack the required document ation.
Another basic education case, AB v Pridwin Preparatory Sch ool,3 concerned
independent schools and looked spec ifically at Parent Contracts. The
court noted that there has be en a proliferation of low-fee state-subsidised
independent schools that cater prim arily to low- and middle-income
* BA(Hons) LLB LLM PhD (UCT). Associate Professor in Private Law, University of Cape
Town.
2 2020 (8) BCLR 1015 (ECG).
Children’s LawChildren’s Law
Amanda Barratt*
2019/2020 YSAL 97
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YEARBOOK OF SOUTH AFRICAN LAW
98
https://doi.org/10.47348/YSAL/v1/i1a2
families. Many of the sc hools use Parent Contracts that include termination
clauses. The AB v Pridwin Preparatory Sc hool case sets an important prece dent
through its ruli ng that Parent Contracts (and the learners’ education) cannot
be terminated without an appropriate and subst antially fair process.
Centre for Child Law v Media 24 Limited4 concer ned the right of child
victims of cri mes to protect their anonymit y and extended this anony mity
protection even after chi ld victims, witnesse s, and accused turn 18 years
of age. The Centre for Child Law has noted that anonym ity protection is
essential to avoid intrusive media scr utiny that results in prolonged trauma
for child participants i n criminal matters and may expos e them to danger.
The COVID-19 pandemic has had a significant impact on South Af rica’s
children. The nat ional lockdown that commenced in Ma rch 2020 has had
a devastating economic impact on many ch ildren’s families. The state
attempted to ameliorate some of this impact t hrough an increase i n the
Child Support Grant, which was increas ed in May by R300 per month to a
total of R750, and by R500 per month in October.5 Perhaps the most obvious
impact on children was t he closure of schools and the re sulting impact on
children’s education and ability to social ise with their peers in t he classroom.
Schools were closed for long periods duri ng the lockdown.6 The question of
whether to close or open schools led to labou r7 and political disputes,8 but
no court cases were reported duri ng the review period. School closures also
had an impact on the National School Nutrit ion Programme, upon which
many indigent children dep end.9 This matter did result in legal act ion, but
the important court judgment was not delivered dur ing the review period.10
5 Equal Education v Minister of Basic Education (22588/2020) [2020] ZAGPPHC 306 (17 July
2020). Unreported available at http://www.saflii.org/za/cases/ZAGPPHC/2020/306.html
para 23, although government later explained that the amount is not raised per child, but per
caregiver (ibid).
6 Idem para 21.
7 See for example Jeanetta Chabalala ‘Teachers’ union in court bid to stop schools from
opening tells its members to stay home’ News24 (2 June 2020); available online at: https://www.
news24.com/news24/southafrica/news/teachers-union-in-court-bid-to-stop-schools-from-
opening-tells-its-members-to-stay-home-20200602 (accessed 18 October 2020) – reporting on
the urgent application lodged by the Educators Union of South Africa to interdict the reopening
of schools.
8 See for example Jenni Evans ‘Western Cape schools will stay open until a court says
others – Schäfer’ News24 (2 June 2020); available online at: https:// www.news24.com/news24/
southafrica/news/western-cape-schools-will-stay-open-until-a-court-says-otherwise-
schafer-20200602 (accessed 18 October 2020) – reporting on the dispute between the Western
Cape Education MEC and the National Department of Basic Education.
9 See Equal Education v Minister of Basic Education (22588/2020) [2020] ZAGPPHC 306 (17 July
2020); unreported available online at http://www.saflii.org/za/cases/ZAGPPHC/2020/306.
html; Legalbrief 5 August 2020.
10 Ibid.
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