Too much of a good thing? Best interests of the child in South African jurisprudence

• Record Number: dejure_v52_n1_a34
• Published date: 01 April 2019
• Pages: 557-579
• Author: Ann Skelton
• DOI: 10.10520/EJC-1ac3736d3e
• Date: 01 April 2019

Best interests of the child in South African jurisprudence 557

Too much of a good thing? Best interests of

the child in South African jurisprudence

Ann Skelton

SUMMARY

The South African Constitutional Court is often lauded for its application of

best interests in its judgments. This article acknowledges the positive

aspects of the Court’s approach, especially in the earlier cases, but also

poses a question – does the Court go too far in applying best interests, in

situations where an equally or more appropriate right in the Bill of Rights

is available – or where a right can be more fully interpreted through

recourse to international law? Two recent cases are analysed to

demonstrate the concern. It is argued that the most rights-based approach

is achieved with the Court pronounces on a clear rights violation, either in

the Constitution or the Convention, and then use best interests to either

weigh rights, justify a derogation of a right, to fill in any normative gaps

where a particular right is not clearly enunciated in the Constitution or

international law, or where it is necessary to show that the impact of an

impugned provision would impact on children more heavily than on

adults. It is concluded that the flexibility of best interests is useful, but it

should not be used so ubiquitously that it prevents normative development

of children’s rights.

1Introduction

This article contains a constructive critique of the South African the

Constitutional Court’s love affair with the best interests principle. As a

practitioner, I have often urged the court to apply best interests in a range

of matters, and yet in this contribution I am posing the question – is it

possible that resort to best interests can be too much of a good thing? The

article traces the origins and development of best interests, and analyses

several important cases of the Constitutional Court, citing profound and

poetic passages of judgments from the Court on best interests. Being

charmed by these, the reader may wonder – what’s the problem?

Briefly stated, my concern is as follows: While I am deeply

appreciative that the Constitutional Court has developed a strong best

interests jurisprudence, I will analyse some examples where the Court

could just as easily – perhaps more correctly – have based its decision on

another substantive right in chapter 2 of the Constitution,1or a more

substantive right in the Convention on the Rights of the Child. I will

observe that the Court risks spreading the right too thinly, an approach

which Sachs J warned against in S v M (Centre for Child Law as Amicus

Curiae).2 I argue that what is needed is a rights based approach – viewing

children as the bearers of all rights in the Constitution.

1 The Bill of Rights is contained in chapter 2 of the Constitution (Constitution

of South Africa Act 105 of 1996).

2 2008 (3) SA 232 (CC).

How to cite: Skelton ‘Too much of a good thing? Best interests of the child in South African jurisprudence’

2019 De Jure Law Journal 557-579

http://dx.doi.org/10.17159/2225-7160/2019/v52a32

558 2019 De Jure Law Journal

In General Comment No 14 on the right of the child to have his or her

best interest taken as a primary consideration (2013),3 the Committee on

the Rights of the Child reminded States Parties that there is no hierarchy

of rights in the Convention and that “an adult’s judgment of a child’s best

interests cannot override the obligation to respect all the child’s rights

under the Convention”.4 The selection of cases discussed here show that

the South African Constitutional Court has usually found violations of

specific rights, with best interests being invoked alongside these5 to

bolster the decision on the main rights violations, or to cover specific

concerns that do not fit neatly under other rights. However, two cases are

singled out for attention that show signs of a deviation from that

approach.

2 From origin to inclusion in the Constitution

The best interests principle was established in South African law through

case law in the early 1900s,6 and it developed through case law,

particularly in family law and in welfare proceedings. It did not reach the

level of being a right until its inclusion in the Bill of Rights in the

Constitution. Prior to that it was a principle that was applied, primarily in

deciding custody disputes.

The process of transition from the end of the apartheid era in South

Africa included the drafting of an Interim Constitution, containing a Bill

of Rights. This became law in 1993 (before the first democratic elections)

and remained in placed while an elected Constitutional Assembly in

Parliament drew up a permanent Constitution. This Interim Constitution

did include best interests as a paramount consideration. In the final 1996

Constitution, the best interests clause stands on its own in section 28(2):

“Achild’s best interestsare of paramount importance in every matter

concerning thechild”. The word paramount is emphatic – considering

that the Convention on the Rights of the Child provides only that a child’s

best interest shall be a primary consideration.7 The African Charter on

the Rights and Welfare of the Child8 has a slightly higher standard of “the

3 CRC/C/GC/14.

4 The Committee was quoting from its earlier General Comment No.13 on

the right to protection from all forms of violence, para 61.

5 See, however, Julia Sloth-Nielsen and Benyam D Mezmur,“2 + 2 = 5?

Exploring the Domestication of theCRCin South African Jurisprudence

(2002–2006)” (2008) InternationalJournalofChildren’sRights. I agree with

Sloth Nielsen and Mezmur’s view that in the early cases brought before the

Constitutional Court “the main beneficiaries of child rights related cases

were in fact adult litigants, who has sought to bolster their claims via

children’s rights-based arguments”. The focus in this article on the post

2000 judgments.

6 Mills has provided a succinct summary of the case law in Mills “Failing

children: The Courts’ disregard of the best interests of the child in Le Roux v

Dey (2014) 131 South African Law Journal 847.The cases she mentions are

Cronje v Cronje 1907 TS 871; Ta b b v Ta b b 1909 TS 1033; Ramsay v Ramsay

1935 SR 84; Mathews v Haswari 1937 WLD 110; Christian v Christian 1945

TPD; Fletcher v Fletcher 1948 (1) SA 130 (A).