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 Profe ssor, University of the Western Cape

BRIGITTE CLARK‡

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

Honorary Visiting R esearcher, 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 in terests conside red paramount in any matt er concernin g them.

The power ful procedural role of t he superior cour ts in this regard is not su bject to

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

to protect all childr en in their jurisdic tion. The arti cle examines whet her this upper

guardianship role ha s become super uous and outdat ed in light of the constitutio nal

requirement that c ourts conside r the paramountcy of t he child’s best interests as a n

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

legal basis for judic ial interventi on, as the case law re viewed in this ar ticle indicate s.

It is also suppor ted by s 173 of the Constitution, which ref ers to the inherent p owers

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 deve lopment of a system of pre cedent-based child l aw, providing judicial

reasons for all dec isions and justify ing the retention of the c ommon-law inhe rent

jurisdiction of t he High Court as the u pper guardian of chil dren. We conclude that

there is a residual r ole for the continued exi stence of the pow ers of the superio r courts

to act as uppe r guardians of the child ren within their jur isdiction, the con stitutional

best-interests standard notwithstanding.

Guardi anship – in herent juri sdictionof s uperior cour ts – childr en’s courts –

best interests

I IN TRO DUC TION

In this a rticle, we explore the com mon-law backgrou nd in relation to the

inherent jur isdiction of the s uperior courts a s upper guard ians of chi ldren

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). htt p s: //o rc i d .

org/0000-0002-8315-1255.

‡ BA LLB (Rhodes) LL M (Cantab) PhD (R hodes). 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 A frica n children to h ave their best intere sts considered as

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

the Const itutiona l Court des cribed the inter relationsh ip of the inherent

jurisd iction with the be st-interests pr inciple as follow s:

‘In South Af rica, in ad dition to sect ion 28(2) of the Const itution, the

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

obliges cou rts to act i n the best intere st of the child i n all mat ters involvi ng

the child. A s upper gua rdian to a ll dependent and m inor chi ldren, cour ts

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

An impor tant featur e of the powers bestowed on the Hig h Court as

the upper guar dian of chi ldren is that the se powers are under stood to

be ‘extremely wide’. The court s are not bound by procedur al strict ures,3

the lim itation of evidence pres ented, or argu ments advanced or not

advanced by par ties in a par ticula r case.4 How the superior cour ts’ powers

as upper gua rdians rel ate to the best-int erests concept is not enti rely

clear, though. The C onstitutiona l Court in pa rticu lar has occa sionally

been critic al of the general r ole of the best-interes ts test because of it s

vague and und ened natu re and whether it can be cons istently applied .5

Writers have questioned whet her the best-intere sts concept is being over -

used to the detr iment of other relevant ch ildren’s rights .6 The procedural

nature of the s uperior courts’ powers a s upper guard ians can not be

critici sed in the same way as t he best-interes ts concept. It is not subject

to review or appea l. It acts as a powerf ul complementar y procedura l tool

to enable the cour ts to intervene on t heir own accord on behal f of and to

protect al l children in t heir juris diction. These a re the strengt hs of this

procedural a spect of court s’ inherent common-l aw jurisdict ion.7

1 Section 28(2) of the Cons titution of the Re public of South Af rica, 1996.

2 2015 (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 establ ish what is in t he best interes ts of the child ren concerned.

4 B 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 critica l appraisa l’ (2019) 9 Constitutional Court Review 363; Jacq ueline Heaton

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

best intere sts, and the i mplication s of such an approach in t he South Afr ican

context’ (20 09) 34 Journal for Ju ridical Scie nce 1; Lize Mi lls ‘Fai ling chi ldren:

The court s’ disregar d of the best intere sts of the chi ld in Le Roux v D ey’

(2014) 131 SALJ 847; L Mwambene & J Sloth -Nielsen ‘Ben ign accommo dation?

Ukuthwa la, “forced m arria ge” and the South A frica n Children’s Act’ (2011) 11

African Hu man Rights LJ 1; M Reyneke ‘Ch ild justice’ (2016) 29 S ACJ 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 a t 557–9.

7 We note that many of t hese powers of the Hi gh Court h ave been, to some

extent, now encap sulated i n statute — eg s 6(3) and s 16 of the Divorce A ct 70

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