Children’s Law

• Citation: 2021/2022 YSAL 105
• Published date: 14 April 2023
• Pages: 105-137
• Author: Barrat, A.
• Date: 14 April 2023

105

1. INTRODUCTION

During the per iod July 2021 to June 2022 several cases involving children’s

rights were heard. The Supreme Court of Appeal (SCA) delivered two

judgments discussing t he Hague Convention on the Civil Aspects of

International Chi ld Abduction and revisited the impact th at s 28(2) of the

Constitution might have when a child’s immediate retu rn is mandated in

terms of the Convention. The Constitutiona l Court (CC) held that the Births

and Deaths Registration Act1 was uncon stitutional because it discrim inated

against fathers of chi ldren ‘born out of wedlock’. Several High Court

judgments examined as sisted reproduction and the legal statu s of children

conceived through such methods. The con stitutional rights of the c hild

require the effec tive and expeditious enforcement of ch ild maintenance

orders. During the review per iod, a well-publicised High Court case

involving the imposition of crim inal penalties on a m aintenance defaulter

was heard. A draft Bill was al so presented to Parliament, which was based on

the claim that the Ma intenance Act machinery is still not ef fective enough.

Parliament has not yet completed the review of regulation s required for the

new age of criminal capacity a s set down in the Chi ld Justice Amendment

Act,2 with the re sult that the new provisions have not yet come into

operation. The Department of Education released its Policy on the Preve ntion

and Management of Learner Pregn ancy in Schools.

* BA (Hons) LLB LLM PhD (University of Cape Town); Associate Professor in Private Law,

University of Cape Town.

1 51 of 1992.

2 28 of 2019.

Children’s LawChildren’s Law

Amanda Barratt*

2021/2022 YSAL 105

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YeArbooK oF south AFrICAN LAW

106

2. LEGISLATION

2.1 AGE OF CRIMINAL CAPACITY

The Child Justice Amendment was as sented to on 26 May 2020. The Act

raises the min imum age for crimi nal capacity from ten years of age to

12 years of age.3 The raised age of crimi nal capacity accords with South

Africa’s treaty obligations under the Convention on the Rights of the Ch ild,

1989. In 2007, the UN Committee on the Rights of the Ch ild recommended

that the mini mum age of crimina l capacity should not be lower than

12 years of age.4

However, the amendments have not yet come into operation. The new

provisions can only be put into operation after t he applicable regulations

have been amended to reflect the new age of cri minal capacity. In May 2022,

the Select Committe e on Security and Just ice reported that this pro cess is

still ongoing.5

2.2 MAINTENANCE AMENDMENT BILL

In Bannatyne v Bannatyne,6 the CC ruled that the st ate has an obligation

to ensure that an effe ctive legal and admin istrative system is in place to

ensure that chi ldren receive the mainten ance that their parents a re obliged

to provide to them.7 Where the state fails to provide such mac hinery, this is

a violation of the child’s constitutional rights u nder s 28 of the Constitution.8

As noted in the Bannat yne case, the state has made many attempts to e nsure

that there is suitable legal and adm inistrative machi nery. However, the

legal and admini strative framework has often failed to ensure that chi ldren

can enforce their ma intenance rights exp editiously.9 Since the Bannatyne

ruling, amend ments have been made to the Maintenance Act10 wh ich ar e

directed at improving its operation, most notably th rough the Maintena nce

Amendment Act11 in 2015. However, it appears that the Mainten ance Act

machinery is st ill not operating effectively.

3 By amending s 7(1)–(2) of the Child Justice Act 75 of 2008.

4 UN Committee on the Rights of the Child (CRC), General Comment No. 10 (2007):

Children’s Rights in Juvenile Justice, 25 April 2007, CRC/C/GC/10 para 32. See also J Sloth-

Nielsen ‘Child justice: Changes to the minimum age of criminal capacity’ (2020) 33 South

African Journal of Criminal Justice 469–479 471.

5 ATC220525: Report of the Select Committee on Security and Justice on Amendments to

Regulations for approval in terms of section 97(2) of the Child Justice Act, 2008 (Act 75 of 2008),

dated 25 May 2022.

6 Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2) SA 363

(CC).

7 Para 24.

8 Para 28.

9 Paras 25–27.

10 99 of 1998.

11 9 of 2015.

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ChILdreN’s LAW 107

In December 2021, Mogamad Ganief Ebrahim Hend ricks, MP, issued a

Notice of Intention to Introduce a Private Member’s Bill and Invitation for

Comment on the Draft Bill, na mely the Maintenance Amendment Bill, 2021.12

In his Notice, Mr Hendricks note d that the objectives of the Ma intenance

Act were to ‘bring about a fair, equitable and sensitive mainten ance service

with simplified, speedier a nd cheaper procedures prioritisi ng the rights of

children, as well as to i mprove effectiveness of enforcement.’13 However,

it had become clear that the Act had failed to del iver on its objectives. He

argued that several studies h ave concluded that the maintenance s ystem

remains in d isarray, is slow, ineffective, clogged up and fairly

unproductive to enforce rig hts; that maintenance debtors evade their

legal duty to maintai n dependents with se eming impun ity despite

active maintena nce orders; that court dates are shu nned without

providing reasons, re sulting in mat ters being postp oned or struck

off the roll – requi ring the complainant to start the pro cess afresh; a

lack of court resourc es, disinterested m aintenance off icers, and the

lengthy delays in fi nalisation of matters; the diffic ulties experienced

by maintenance of ficers and investigators in obtain ing the necessary

documentation for the f inalisat ion of matters or maladm inistration

resulting in los t files; and lengthy waiting time s at court resulting in

complainants bei ng late for work or unable to attend work resulti ng

in loss of income, reduction i n annual leave days or even termination

of employment. In addition, complaina nts have to pay their own

transport a nd subsistence costs, while thes e are paid to respondents.14

The Bill proposes the followi ng amendments to the Mainten ance Act in

order to address these chal lenges:

Claimants who produce prima facie evidence of undue hardship should

be entitled to a provisional mainten ance order as an ex parte r ule ni si

applicat ion.15 This provisiona l maintenance order wi ll remain operationa l

until the fi nal determinat ion of the matter or a formal heari ng in terms

of Uniform Rule 43 of the High Court or Rule 58 of the Magi strates’

Courts Rules.16 The claimant may apply for a garnishee order where the

respondent fails to comply with the provisional ma intenance order.17 The

complainant must also be advised t hat they are entitled to claim allowances

for subsistence and travel to and from court.18 In addition, the Bil l proposes

12 Notice 709 of 2021 Government Gazette 45616 (10 December 2021) 140.

13 Notice 709 at 140.

14 Notice 709 at 141.

15 Notice 709 at 141, numbered (a).

16 Notice 709 at 141, numbered (b).

17 Notice 709 at 142, numbered (c).

18 Notice 709 at 142, numbered (d).

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