A superfluous concept? The inherent jurisdiction of the South African superior courts as upper guardians of children

• Citation: (2024) 141 SALJ 391
• DOI: https://doi.org/10.47348/SALJ/v141/i2a6
• Published date: 10 April 2024
• Pages: 391-414
• Author: Sloth-Nielsen, J.
• Date: 10 April 2024

391

https://doi.org/10.47348/SALJ/v141/i2a6

A SUPERFLUOUS CONCEPT? THE INHERENT

JURISDICTION OF THE SOUTH AFRICAN

SUPERIOR COURTS AS UPPER GUARDIANS

OF CHILDREN

JULIA SLOTH-NIELSEN†

Professor of Law, University of Hudderseld;

Emeritus Professor, University of the Western Cape

BRIGITTE CLARK‡

Associate Professor, School of Law, University of KwaZulu-Natal;

Honorary Visiting Researcher, Oxford Brookes University

This arti cle examines the relationship betw een the role of the superior cour ts as upper

guardians of minor s and the constitutionally enshr ined right of South Africa n children

to have their best interests considered paramount in any matter concerning them.

The powerful procedural role of the superior courts in this regard is not subject to

review or app eal, enabling the courts to int ervene of their own acco rd on behalf of and

to protect all children in their jurisdiction. The article examines whether this upper

guardianship role has become superuous and outdated in light of the constitutional

requirement that courts consider the paramountcy of the child’s best interests as an

independent r ight. The High Court’s upper g uardianship role provides a more  exible

legal basis for judicial intervention, as the case law reviewed in this article indicates.

It is also supported by s 173 of the Constitution, which refers to the inherent powers

of courts to prot ect and regulate their own p rocess and to develop the commo n law, and

by s 45(4) of the Children’s Act. Furthermor e, the superior courts, as co urts of record,

enable the development of a system of precedent-based child law, providing judicial

reasons for all decisions and justifying the retention of the common-law inherent

jurisdiction of the High Court as the upper guardian of children. We conclude that

there is a residual role for the continued existence of the powers of the superior courts

to act as upper guardians of the children within their jurisdiction, the constitutional

best-interests standard notwithstanding.

Guardianship – inherent jurisdictionof superior courts – children’s courts –

best interests

I INTRODUCTION

In this article, we explore the common-law background in relation to the

inherent jurisdiction of the superior courts as upper guardians of children

within t heir jurisdiction. We exam ine the relationship bet ween the role of

the courts a s upper guardians of m inors and the constitut ionally enshri ned

† BA LLB (Stel lenbosch) LLM (Cape Town) LLD (Western C ape). https://orcid.

org/0000-0002-8315-1255.

‡ BA LLB (Rhodes) LLM (Cantab) PhD (Rhodes). https://orcid.org/0000-

0003-0432-8196.

(2024) 141 SALJ 391

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392(2024) 141 THE SOU TH AFRICAN LAW JOUR NAL

https://doi.org/10.47348/SALJ/v141/i2a6

right of South African children to have their best interests considered as

paramount i n any matter concerni ng them.1 In H v Fetal Assessment Centre,2

the Constitutional Courtdescribed the interrelationship of the inherent

jurisdiction with the best-interests principle as follows:

‘In South Africa, in addition to section 28(2) of the Constitution, the

common law pr inciple that the High Court i s the upper guardi an of children

obliges courts to act in the best interest of the child in all matters involving

the child. As upper guardian to all dependent and minor children, courts

have a duty and aut hority to esta blish what is in the b est interests of ch ildren.’

An important feature of the powers bestowed on the High Court as

the upper guardian of children is that these powers are understood to

be ‘extremely wide’. The courts are not bound by procedural strictures,3

the limitation of evidence presented, or arguments advanced or not

advanced by parties in a particular case.4 How the superior courts’ powers

as upper guardians relate to the best-interests concept is not entirely

clear, though. The Constitutional Court in particular has occasionally

been critical of the general role of the best-interests test because of its

vague and undened nature and whether it can be consistently applied.5

Writers have questioned whether the best-interests concept is being over-

used to the detriment of other relevant children’s rights.6 The procedural

nature of the superior courts’ powers as upper guardians cannot be

criticised in the same way as the best-interests concept. It is not subject

to review or appeal. It acts as a powerful complementary procedural tool

to enable the courts to intervene on their own accord on behalf of and to

protect all children in their jurisdiction. These are the strengths of this

procedural aspect of courts’ inherent common-law jurisdiction.7

1 Section 28(2) of the Constitution of the Republic of South Af rica, 1996.

22015 (2) SA 193 (CC) para 64.

3 Rump CJ’s judg ment in Shawzin v Laufe r 1968 (4) SA 657 (A) indicated t hat

when a court sit s as upper guardia n in a care matter it ha s extremely wide powers

to establish what is in the best interests of the child ren concerned.

4B v S 1995 (3) SA 571 (A); T v M 1997 (1) SA 54 (A).

5 Meda Couze ns ‘The best interest s of the child and the Cons titutional Cour t:

A critical appraisal’ (2019) 9 Constitutional Court Review 363; Jacqueline Heaton

‘An individua lised, contextu alised and chi ld-centred determ ination of the child ’s

best interests, and the implications of such an approach in the South African

context’ (2009) 34 Journal for Juridical Science 1; Lize Mills ‘Failing children:

The courts’ disregard of the best interests of the child in Le Roux v Dey’

(2014) 131 SALJ 847; L Mwambene & J Sloth-Nielsen ‘Benign accommodation?

Ukuthwala, “forced marriage” and the South African Children’s Act’ (2011) 11

African Human Rights LJ 1; M Reyneke ‘Child justice’ (2016) 29 SACJ 376;

LW v DB 2015 JDR 2617 para 10.

6 Ann Skelton ‘Too much of a good thi ng? Best interests of t he child in South

Afric an jurisprudence’ (2019) 52 De Jure 557 at 557–9.

7We note that many of these powers of the High Court have been, to some

extent, now encapsulated in statute — eg s 6(3) and s 16 of the Divorce Act 70

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