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Why protect children's rights?

The inclusion in the Bill of Rights of a special section on the rights of the child was an important development for South African children, most of whom had suffered under apartheid for many years. Some had been detained without trial, tortured and assaulted; many faced discrimination in healthcare, education and other areas.

Children need special protection because they are among the most vulnerable members of society. They are dependent on others - their parents and families, or the state when these fail - for care and protection.

As a result, the drafters of our Constitution have made children's rights a priority - and have stated that the best interests of a child are the overriding concern when it comes to any matter affecting him or her.

Section 28 - Children

Section 28 of the Bill of Rights, entitled "Children", says:

  1.     Every child has the right to -
            a name and a nationality from birth;
            family care or parental care, or to appropriate alternative care when removed from the family environment;
            basic nutrition, shelter, basic health care services and social services;
            be protected from maltreatment, neglect, abuse or degradation;
            be protected from exploitative labour practices
            not be required or permitted to perform work or provide services that -
                are inappropriate for a person of that child's age; or
                place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development;
            not 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 -
                kept separately from detained persons over the age of 18 years; and
                is treated in a manner, and kept in conditions, that take account of the child's age;
            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
            not be used directly in armed conflict, and to be protected in times of armed conflict.
  2.     A child's best interests are of paramount importance in every matter concerning the child.
  3.     In this section 'child' means a person under the age of 18 years.
    This section gives children the right to a name, citizenship and some form of care. Children need food and shelter, and should be protected from abuse, neglect and degradation. No child should work when under-age, or do work that would interfere with his or her education or development.

Children should be jailed only as a last resort and should not have to share a cell with adults. They should not take part in wars and should be protected during conflict.

The second sub-section, a very important clause, says a child's interests are the most important consideration in any matter concerning the child.

Other rights

That the Bill of Rights has a section devoted to children does not mean that the rights in the others sections do not apply to them too. The sections that deal with equality, human dignity, religion and health - as well as many others - are especially relevant and also apply to children. 

New legislation

The Bill of Rights is not the only instrument the law uses to guard children's rights. Legislation that provides specific protection for children includes:

  • the Child Care Act of 1983, which makes it a criminal offence if a person who has to maintain a child doesn't provide the child with clothes, housing and medical care;
  • the Basic Conditions of Employment Act of 1997, which makes it illegal to employ a child under 15;
  • the Domestic Violence Act of 1998, which defines different forms of domestic violence and explains how a child can get a protection order against the abuser; and
  • the Films and Publications Act of 1996, which protects children from exploitation in child pornography.

One example of new legislation passed in response to a Constitutional Court ruling - in this case, the Fraser judgment - is the Natural Fathers of Children Born out of Wedlock Act of 1997.

It gives natural unmarried fathers - including those whose marriages are not recognised by the state, for example Muslim and Hindu marriages - the statutory right to go to court to ask for access, custody or guardianship of their children. The interests of the children are seen as most important in deciding on custody or access to children.

The Children's Bill, which went before Parliament in 2003, is meant to replace the Child Care Act of 1983. It aims to provide a holistic approach to the rights of all children.

Key Constitutional Court judgments

The Constitutional Court has handed down a number of judgments that have affirmed women's rights. (See also the sections on the rights of children and gays and lesbians for some related decisions.)

Brink v Kitshoff NO (read the judgment)

Section 44 of the Insurance Act of 1943 deprived married women, but not married men, of all or some of the benefits of life insurance policies made in their favour by their husbands.

The Constitutional Court held that section 44 discriminated against married women on the basis of sex and marital status, and was thus a violation of the equality clause. Married men did not lose the benefits of insurance policies ceded to them or made out in their favour by their wives.

The Court held that, since the common-law rule prohibiting donations between spouses had been abolished, the argument that the section provided married women with a benefit was no longer applicable. The Court also rejected the argument that the section was necessary to prevent collusion between spouses: such collusion could as easily occur where husbands rather than wives were beneficiaries.

The Court ruled that sections 44(1) and 44(2) were invalid as from 27 April 1994, but exempted payments already made on the strength of those provisions.

Carmichele v Minister of Safety and Security and another (read the judgment)

This case concerned the constitutional obligation on the courts to develop the common law to promote the Bill of Rights. The specific issue was whether the High Court and the Supreme Court of Appeal ought to have broadened the concept of wrongfulness in the law of delict in the light of the state's constitutional duty to safeguard the rights of women.

The applicant sued two ministers for damages resulting from a brutal attack on her by a man who was awaiting trial on charges of having attempted to rape another woman. Despite the man's history of sexual violence, the police and the prosecutor had recommended his release without bail.

The applicant alleged that this had been a wrongful omission. She also relied on the duties imposed by the rights to life, equality, dignity, freedom and security of the person, and privacy.

But the High Court said she had not established that the police or the prosecutor had wrongfully failed to fulfil a legal duty owed specifically to her. On appeal the Supreme Court of Appeal held that the police and prosecution had no legal duty of care towards her and could not be held liable. The Constitutional Court, however, granted the application for leave to appeal and upheld the appeal.

Regarding the police, the Court held that the state was obliged to prevent gender-based discrimination and to protect the dignity, freedom and security of women.

Similarly, the Court held that prosecutors, under a general duty to place before a court any information relevant to the refusal or granting of bail, might reasonably be held liable for negligently failing to fulfil that duty.

The appeal was upheld and the matter referred back to the High Court for the trial to be concluded, after which the Court held the High Court should consider whether it was necessary to develop the common law.

Daniels v Campbell NO and others (read the judgment)

In this case the Constitutional Court decided that persons married according to Muslim rites were spouses for the purposes of inheriting or claiming from estates where the deceased died without leaving a will.

The applicant, Mrs Daniels, was married to her husband according to Muslim rites in 1977. The marriage was not solemnised under the civil law. When her husband died intestate in 1994, the house in which they lived was transferred to the deceased estate.

The applicant was told that she could not inherit from the estate because she did not qualify as a "surviving spouse".

She approached the High Court, which held that "spouse" could only be applied to people married according to South African law and did not include people married according to Muslim rites. The High Court found that this interpretation violated the applicant's rights to practise her religious and cultural beliefs, and ordered that words be read in to the Intestate Succession Act and the Maintenance of Surviving Spouses Act to give her the relief she sought.

But on appeal, Justice Sachs of the Constitutional Court held that the word "spouse" included parties to a Muslim marriage: it was not necessary to read in words into the Acts.

Also, the objective of the Acts was to protect widows - and there was no reason why the equitable principles underlying the statutes should not apply to Muslim widows as well.

In a concurring judgment, Justice Ngcobo considered whether previous Constitutional Court decisions that dealt with the interpretation of the word "spouse" prevented it from upholding the appeal. He held that previous decisions did not prevent the adoption of a construction of the word "spouse" to include parties to a Muslim marriage.

All except Justice Moseneke and Justice Madala concurred.

Moseneke held, with Madala concurring, that the word "spouse" had a specific and settled meaning in our law: it precluded parties who had not complied with the formalities of the Marriage Act from being regarded as spouses in the context of other legislation.

But he held that the exclusion of people married under Muslim rites was clearly a remnant of the apartheid era, and unjustifiably discriminatory. He found this to be unconstitutional and suggested a remedy of reading appropriate words into the Acts.