A “golden thread”? Some aspects of the application of the standard of the best interest of the child in South African family law

• Jurisdiction: South Africa
• Published date: 30 May 2019
• Date: 30 May 2019
• Citation: (2000) 11 Stell LR 3
• Pages: 3-20
• Author: Brigitte Clark

A "golden thread"? Some aspects of the application of the

standard of the best interest of the child in South African

family law

2000 Stell LR 3

Brigitte Clark

BA LLB LLM

Senior Lecturer, Rhodes University

1. Introduction

The standard of the child’s best interest has been described as “[a] golden thread

which runs throughou t th e whole fabric of our l aw relati ng to children”. 1 The best

interest of the child i s established as the dete rmining factor in decisions relating to

guardianship, access and custody of children in our private law and the rule is

entrenched in the Con stitution. 2 It also forms one of the foundat ion stones of the

Convention on the Rights of the Child. 3 In terms of the Convention, in all actions

concerning children, whether undertaken by public or private social welfare

institutions, courts of law, administrative authorities or legislative bodi es, th e best

interest of the child must be a primary consideration. 4 A child is defined i n the

Convention on the Rights of the Child 5 and in the South African Consti tution 6 as

every human being under the age of eighteen years, unless under the law applicable

to the chi ld, majority is attained earlier. 7 The Consti tution of South Africa in its Bill

of Rights provides for the paramountcy of the best interest of the child standard. 8

The wording is stronger th an that of the Convention on the Ri ghts of the Child and

the application of the best interest stan dard has now been extended to every matter

concerning the child. 9 T he wording of the C onstitution al so makes it clear th at the

field of application of the best interest standard is not restricted to proceedings

under the children’s rights clause. 10 To date there has been little in the way of

judicial interpretation of the rights embodied in section 28 of the children’s rights

clause of the Constitution. Courts have generally

2000 Stell LR 4

avoided considering the impact of the consti tutional paramountcy of the chi ld’s best

interest. 11 In some ca ses, the courts have simply assumed that the factors relevant

to determining a child’s best interest in private law 12 are applicable in the

constitutional sphere. The welfare principle embodied in our current law will thus

need to be tested against the Bill of Righ ts and at present much of our South African

law i s under review. 13 One project is to review the Child Care Act 14 and all other

1 See Kaiser v Chambers 1969 (4) SA 224 (C) 228G per Tebbutt AJ (as he then was).

2 S 28 of the Constitution of the Republic of South Africa 108 of 1996.

3 Ratified by South Africa on 16 June 1995 – hereafter CRC.

4 A 3 1.

5 A 1.

6 S 28(3) Act 108 of 1996.

7 In terms of the South African law, however, majority status is generally only attained at the age of 21.

S 1 of the Age of Majority Act 57 of 1972.

8 S 28(2) Act 108 of 1996. Cf s 1(1) of the English Children’s Act (1989) which also provides for the

paramountcy of the child’s welfare.

9 Sloth-Nielsen “Ratification of the United Nations Convention on the Rights of the Child: Some

implications for South African law” 1995 SAJHR 401 418.

10 S 28.

11 See J v Commissioner of Child Welfare [1996] 2 All SA 259 (W); Klink v Regional Court Magistrate

[1996] 1 All SA 191 (SE); cf V v V 1998 (4) SA 169 (C).

12 In particular in the case of McCall v McCall 1994 (3) SA 201 (C), see too Fitschen v Fitschen CPD 1997-

07-31 case no 9564/95.

13 See Review of the Child Care Act 74 of 1983 Project 110 (Issue Paper 13) (First Issue Paper) (1998).

(2000) 11 Stell LR 3

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