Children’s rights jurisprudence in South Africa – a 20 year retrospective
| Author | Julia Sloth-Nielsen |
| Date | 01 April 2019 |
| Record Number | dejure_v52_n1_a31 |
| DOI | 10.10520/EJC-1ac36bf98a |
| Pages | 501-520 |
| Published date | 01 April 2019 |
Children’s rights jurisprudence in South Africa – a 20 year retrospective 501
Children’s rights jurisprudence in South
Africa – a 20 year retrospective
Julia Sloth-Nielsen
BA LLD
Professor, Dept of Public Law and Jurisprudence, University of the Western Cape and
Professor of Children’s Rights in the Developing World, Leiden University
SUMMARY
This article provides a 20 year overview of children’s rights jurisprudence
in South Africa, with a predominant focus on cases in the public law arena
(as opposed to family law). After identifying various themes that the author
believes are worthy of note, such as the interplay between best interests
and the child’s rights to dignity; the innovative remedies that have
characterised child rights case outcomes; and the courts’ engagement with
international law, the article concludes that constitutionalising children’s
rights has the advantage of elevating their status to the highest point in a
legal system. Moreover, rights having the capacity to shift the balance of
power, and for children, the framing of their rights in constitutional terms
has resoundingly dislodged paternalistic approaches rooted in welfarism.
1Introduction
This retrospective builds on a number of previous endeavours to give life
to the significant jurisprudence that has developed in 20 years of
children’s rights litigation in South Africa. This article will provide a
synopsis of previous efforts to unpack the overarching contribution of
children’s rights litigation over somewhat more than two decades, with
a few brief updates of more recent cases. Thereafter, the article will
engage with specific themes that emerge from the case law. A
summative assessment of the contribution of children’s rights litigation
to the constitutional project of embedding children’s right ideals in
practice forms the conclusion.
2 Overview of previous endeavours
Articles in 2002, 2008 and 2013 appear to have laid a basis for the
systemic consideration of South African children’s rights jurisprudence in
aggregate. The 2002 publication1 was undertaken in an effort to explore
whether the generous predictions of an earlier article on the supposed
impact that the constitutionalisation of children rights was going to have,
had in fact born fruit. The findings of that analysis were that the initial
1 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
IJCR 137.
How to cite: Sloth-Nielsen ‘Children’s rights jurisprudence in South Africa – a 20 year retrospective’
2019 De Jure Law Journal 501-520
http://dx.doi.org/10.17159/2225-7160/2019/v52a29
502 2019 De Jure Law Journal
constitutional promise had not been met. It was asserted that children’s
constitutional rights had largely been harnessed by adults in pursuit of
their own claims, and that children’s individual interests had not taken
centre stage. Children had been all but invisible in constitutional litigation
at that point, prompting Justice Albie Sachs in an oft quoted postscript to
lament that that the Constitutional Court (hereafter CC) was not even
appraised of the views of the scholars whose parents were seeking a
confirmation of their parental rights to permit the practice of corporal
punishment in private schools.2 This period also saw the disappointing
outcome for children’s rights advocacy heralded by the then major socio-
economic rights case, Government of the Republic of South Africa and
others v Grootboom and others.3 The CC declined to interpret the child’s
rights to basic nutrition, shelter, basic health care and social services in
section 28(1)(c) of the Constitution to encompass a directly enforceable
claim for a minimum level of shelter against the state for destitute
children, unless such children were orphaned, abandoned or otherwise
lacked a family environment. The decision thereby evidently closed the
door to a more expansive reading which would see children have a
preferential claim to resources, as some academics had suggested was
the true meaning of section 28(1)(c).4
The 2008 article, published in the same journal, was geared towards
an international audience potentially following the desirability of
justiciable and constitutionally enshrined legal rights for children as an
avenue for the enhanced domestication of the United Nations
framework of the four cardinal pillars of the CRC – non-discrimination,
best interests, the right to life, survival and development, and freedom to
express views and have those views taken into account – and attempted
to classify an increasing array of case law concerning children’s rights
into one of those headings. The article indicated that the pendulum had
indeed swung towards an identification of children’s interests eo nomine.
2Christian Education South Africa v Minister of Education 2000 10 BCLR 1051
(CC).
3 2000 11 BCLR 1169 (CC).
4 Creamer “The implication of socio-economic rights jurisprudence for
government planning and budgeting: the case of children's socio-economic
rights” 2004 Law, Democracy and Development 221.
5 UNICEF Innocenti Centre “Law reform and the implementation of
Convention on the Rights of the Child” 2008 available at https://www.unicef
-irc.org/publications/493-law-reform-and-the-implementation-of-the-conven
tion-on-the-rights-of-the-child.html; see for examples of the international
interest in the South African experience of constitutionalising children’s
rights, Tobin “Increasingly seen and heard: the constitutional recognition of
children’s rights” 2005 SAJHR 86 and O’Mahony “The promises and pitfalls
of constitutionalising children’s rights” 2019 Human Rights Law Review (in
press).
6 Sloth-Nielsen and Mezmur “2+2=5? Exploring the Domestication of the
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