The Grootboom judgment, interpretative manoeuvring and depoliticising children's rights

• Author: Linda Stewart
• Date: 01 January 2011
• Pages: 97-114
• DOI: 10.10520/EJC153214
• Published date: 01 January 2011

The Grootboom judgment, interpretative

manoeuvring and depoliticising

children’s rights

Linda Stewart

*

Legal texts do not self-generate their meanings; they must be interpreted

through legal work.

1

1Introduction

Our people did not give their lives in exchange for the mere freedom to walk the

streets relatively unharrassed, nor to suffer continued deprivation while the

architects of the old rules lived in splendour ... we have won the debate on

whether economic and social rights should or should not be included in the

Constitution ... what we need to do is work out how far the new and relevant rights

should go ... is it practical or ethical that a child’s right to nutrition can be secured

while the mother and father starve? Can the child’s right to nutrition be realised

in the absence of the right to water? Can the ultimate aim of nutrition, good health,

be assured if a child has a full stomach but has no home to live in? Can we

realistically expect that a homeless child have a full stomach?

2

In Government of the Republic of South Africa v Grootboom

3

the Court

interpreted section 28(1)(b)

4

of the Constitution of the Republic of South Africa,

*

B Comm, LLB, LLM, LLD. Professor of Law, North West University (Potchefstroom Campus).

1

Klare ‘Legal culture and transformative constitutionalism’ (1998) SAJHR 146 at 157.

2

Kadar Asmal representing the African National Congress in the Constitutional Assembly, 1995-01-

24. Constitutional Assembly Annual Report 1996 available at http:/ /www.polity .org.za/poli ty/govdocs

/constitution/ca/ANREPORT/CA95_96.PDF (accessed 2011-07-29). This statement by Prof Asmal

reflected on the interpretive challenges of the constitutional text for the community of constitutional

interpreters in South Africa.

3

2000 11 BCLR 1169 (CC), hereafter Grootboom. The Court cautioned that ‘[t]he carefully

constructed constitutional scheme for progressive realisation of socio-economic rights would make

little sense if it could be trumped in every case by the rights of children to get shelter from the state

on demand. Moreover, there is an obvious danger. Children could become stepping stones to

housing for their parents instead of being valued for who they are’ (para 71).

4

Section 28(1)(b) provides ‘that every child has the right to family care, parental care, or appropriate

alternative care when removed from the family environment’.

(2011) 26 SAPL98

1996

5

as a subsection which defines those responsible for giving care while section

28(1)(c) lists various aspects of the care entitlement.

6

Although the Court only

indirectly addressed children’s rights,

7

it reasoned that the parents and/or the family

of a child have the primary duty to care for children and the socio-economic rights

contained in section 28(1)(c), in so far as it overlapped with the socio-economic rights

of parents, cannot be interpreted as giving children an immediate right on demand.

8

The duty is only shifted to the state where there is lack of family/parental care.

9

The meaning afforded to subsections (1)(b) and (c) by the Court in Grootboom

has been criticised by many scholars

10

who argue that this particular interpretation

is not the only possible textual meaning of the two subsections.

11

For example,

these subsections may also be read as separate entitlements where subsection

(1)(b) refers to emotional non-material aspects of care while subsection (1)(c) refers

5

Hereafter ‘the Constitution’.

6

Grootboom (n 3) para 77. See Friedman, Pantazis and Skelton ‘Children’s rights’ in W oolman,

Roux, and Bishop (eds) Constitutional law of South Africa (2009) ch 47, 9.

7

Preceding the Constitutional Court case was the High Court case, Grootboom v Oostenberg

Municipality 2000 3 BCLR 277 (C) where, Davis J interpreted the right of children to shelter as

bestowing an immediate entitlement upon children and their parents to a rudimentary form of protection

from the elements (para 289 B). The High Court reasoned that the primary obligation to provide children

with shelter rests on their parents and where the parents are not able to fulfil this duty the state has to

provide the most basic form of shelter (para 289 A). He referred to s 28(1)(b) which provides that

children are entitled to parental care and s 28(2) which determines that the best interests of the child

are paramount, and indicated that ‘an order which enforces a child’s right to shelter should take account

of the need of the child to be accompanied by his or her parent’ (para 295 I-J). The High Court based

its judgment on ss 28(1)(c), 28(1)(b) and 28(2) and because of this the Constitutional Court had to

address children’s rights indirectly although the later court based its judgment on s 26.

8

Grootboom (n 3) para 71.

9

Grootboom (n 3) para 77.

10

See subsequent discussion.

11

Section 28(1) reads

(1) Every child has the right –

(a) to a name and a nationality from birth;

(b) to family care, parental care, or appropriate alternative care when removed from the family

environment;

(c) to basic nutrition, shelter, basic health care services, and social services;

(d) to be protected from maltreatment, neglect, abuse, or degradation;

(e) to be protected from exploitative labour practices;

(f) not to be required or permitted to perform work or provide services that –

(i) are inappropriate for a person of that child’s age; or

(ii) place at risk the child’s well-being, education, physical or mental health, or spiritual, moral, or

social development;

(g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child

enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period

of time, and has the right to be –

(i) kept separately from detained persons over the age of 18 years; and

(ii) treated in a manner, and kept in conditions, that take account of the child’s age;

(h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil

proceedings affecting the child, if substantial injustice would otherwise result; and

(i) not to be used directly in armed conflict, and to be protected in times of armed conflict.