WORK IN PROGRESS

A Legal Analysis of South Africa’s Implementation of the UN Convention on the Rights of the Child

Contents:
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1. Compliance with the Convention
1.1 State status
1.2 Implementing measures

  • Definition of child (art. 1)
  • Non-discrimination (art. 2)
  • Best interests of the child(art. 3) and child’s separation from parents (art. 9)
  • The right to life, survival and development (art. 6)
  • Family reunification (art. 10)
  • The right to be heard (art. 12)
  • Civil rights and freedoms (arts. 7, 8, 13-17, 37a)
  • Registered immediately after birth / preserve his or her identity (art. 7/8)
  • Right to freedom of expression (art. 13)
  • Freedom of thought, conscience and religion (art. 14)
  • Privacy (art. 16)
  • Freedom of association and freedom of peaceful assembly (art. 15)
  • Family environment and alternative care (arts. 18.1, 18.2, 27.4, 20, 21, 11, 19)
  • Basic health and welfare (arts. 23, 24, 26)
  • Education, leisure and cultural activities (arts. 28, 29 and 31)
  • Children in situations of emergency (arts. 22, 38 and 39)
  • Article 22: refugees
  • Article 38: children in armed conflict
  • Article 39: Physical and psychological recovery and re-integration of child victims
  • Protection from abuse and neglect (art. 19)
  • Disability (art. 23)
  • Children in conflict with the law (arts. 40, 37 and 39)
  • Children in situations of exploitation, including physical and psychological recovery and social reintegration (arts. 32, 33, 34, 35, 36 and 39)
  • Article 32: work that isdangerous or might harmhealth or education
  • Dangerous drugs (art. 33)
  • Children belonging to a minority or an indigenous group (art. 30)

1. 3 OptionalProtocol to the Convention on the Rights of the Child on the involvement of children in armed conflict

1. 4 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography

2. Children’s rights: South African jurisprudence

3. Avenues for Redress
4. Child rights organisations in South Africa

Compliance: South Africa
  1. State status

This information is available from:

Convention on the Rights of the Child
(CRC) / Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict / Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography
Signed: January 1993
Ratification: 16 June 1995 / Signed: 8 February 2002
Ratification: / Signed:
Ratification: acceded 30 June 2003
Declarations: None / Declarations: None / Declarations: None
  1. Implementing legislation
  2. Convention on the Rights of the Child

Relevant provision of the Convention on the Rights of the Child / Domestic legislation or implementing measure
Definition of child (art. 1) / Constitution of the Republic of South Africa(the “Constitution”)
The Constitution has a dedicated section which deals with children’s rights (section 28). This section is by no means exhaustive of children’s rights. The provisions contained in the Bill of Rights are equally applicable to children unless specifically excluded.
Constitutional Principle
Section 28(3) of the Constitution defines a ‘child’ as a person under the age of eighteen years. Therefore only persons below eighteen years of age are entitled to the protection afforded by section 28 of the Constitution.
(see
Main Statute [Children’s Act38 of 2005 (the “Children’s Act”)]
The Children’s Act gives effect to: section 28 of the Constitution; the Hague Convention on International Child Abduction;the Hague Convention on Inter Country Adoption; the Universal Declaration of Human Rights; the Geneva Declaration on the Rights of the Child;the Convention on the Rights of the Child;the African Charter on the Rights and Welfare of the Child; and the UN Protocol to Prevent Trafficking in Persons.
Section 1 of the Children’s Act defines a child as a person under the age of 18 years.
The objects of theChildren’s Act are:
(a)to promote the preservation and strengthening of families;
(b)to give effect to the following constitutional rights of children, namely:
(i)family care or parental care or appropriate alternative care when removed from the family environment;
(ii)social services;
(iii)protection from maltreatment, neglect, abuse and degradation;and
(iv)that the best interests of a child are of paramount importance in every matter concerning the child
(c)to give effect to the Republic’s obligations concerning the well-being of children in terms of international instruments binding on the Republic;
(d)to make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional andsocial development of children;
(e)to strengthen and develop community structures which can assist in providing care and protection for children;
(f)to protect children from discrimination, exploitation and any other physical, emotional or moral harm or hazards;
(g)to provide care and protection to children who are in need of care and protection;
(h)to recognise the special needs that children with disabilities may have; and
(i)generally, to promote the protection, development and well-being of children.
Legal minimum age for the exercise of certain rights and obligations (including at what age children can get legal representation) / Constitutional Principle
Section 28(3) of the Constitution defines a ‘child’ as a person under the age of eighteen years.
Main Statute [Children’s Act 38 of 2005 (the “Children’s Act”)]
Section 1 of the Children’s Act defines a child as a person under the age of 18 years.
Section 17 of the Children’s Act provides that a child becomes a major upon reaching the age of 18 years.
Other Relevant Statutes
Various statutes have a legal minimum age to exercise certain rights and obligations, for example:
Depositor in a Financial Institution
Section 87(1) of the Banks Act 94 of 1990 and section 88(1) of the Mutual Banks Act 124 of 1993 allows a minor over the age of 16 years to (i) be a depositor with a bank;(ii) execute all necessary documents, and cede, pledge, borrow against, and generally deal with, his or her deposit as he or she thinks fit (without consent); and (iii) enjoy all the privileges and liabilities, obligations and conditions applicable to depositors.
Medical Schemes
Under section 30(1)(f) of the Medical Schemes No. 131of 1998 Act 72 of 1967, a medical scheme may in its rules make provision for the membership of a minor who is assisted by his or her parent or guardian.
Legal representation
Constitutional Principle
Section 28(1)(h) and section 35(3)(g) of the Constitution provides the right to free legal representation at the expense of the state if substantial injustice would otherwise result.
Relevant Statute
Section 14 of the Children’s Act states that every child has the right to bring and to be assisted in bringing a matter to a court, provided that the matter falls within the jurisdiction of that court.
Section 55(1) of the Children’s Actprovidesthat:where a child is involved in a matter before the children’s court who is not represented by a legal representative, and the court is of the opinion that it would be in the best interests of the child to have legal representation, the court must refer the matter to the Legal Aid Board referred to in section 2 of the Legal Aid Act No 22 of 1996.
Section 141(b) of the Children’s Amendment Bill prohibits the employment of children for commercial sexual exploitation.
Employment
Section 43(1) of the Basic Conditions of Employment Act 75 of 1996provides that: No person may employ a child who is under 15 years of age or who is under the minimum school-leaving age in terms of any law.
Possession of firearm
Under section 9 of the Firearms Control Act 60 of 2000 a competence certificate to possess, trade in, manufacture or carry on business as a gunsmith may be issued to a person only if he or she is 21 years or older on the day the application is received by the Designated Firearms Officer. The Registrar may allow a person under the age of 21 years to apply for a Competency Certificate if there are compelling reasons which require the person to obtain a Competency Certificate or licence to possess a firearm.
Drink alcohol
Section 10 of the Liquor Act 59 of 2003 provides that: a person must not sell or supply liquor or methylated spirits to a minor (a person under the age of eighteen years). A parent, adult guardian of a minor or a person responsible for administering a religious sacrament, may on occasion supply to that minor a moderate quantity of liquor to be consumed by the minor in the presence and under the supervision of that parent, guardian or other person.
Donate blood
Section 14 of the Human Tissue Act 65 of 1983 allows for the donation of blood with consent from a person who is 14 years or older. Section 55 and 56 of the National Health Act 61 of 2003 provides that:a person may withdraw (a) blood with the written consent of the person from whom the tissue, blood, blood product or gametes are to be removed; (b) in the prescribed manner;(c) the tissue which is not replaceable by natural processes from a person younger than 18 years; or (d) gamete from a person younger than 18 years.
To become a safe blood donor you must:
  • weigh at least 50kg;
  • be between the ages of 16 and 65;
  • be in good health;
  • lead a sexually safe lifestyle; and
  • consider your blood safe for transfusion to a patient.
(see
Driving a vehicle
Section 15(1) (iii) of the National Road Traffic Act 93 of 1996provides that an individual may drive from the age of eighteen years, provided that all of the tests have been passed.
Smoking
Section 4 of the Tobacco Products Control Act 83 of 1993 provides thatsixteen years is the minimum age to purchase tobacco.
Consultation of a lawyer without parental consent / Constitutional Principle(Legal Representation)
Section 28(1)(h)of the Constitution provides that the State must assign a legal practitioner to a child, at the State’s expense, in civil proceedings affecting the child if substantial injustice would otherwise result. Section 28(1)(h) must be read with the rights of arrested, detained and accused persons (section 35) and the right of access to courts (section 34).
Main Statute [Children’s Act No. 38 of 2005 and Legal Aid Act 22 of 1996] Section 10 of the Children’s Act titled “Child Participation” states that every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.
Section 14 of the Children’s Act further states that every child has the right to bring, and to be assisted in bringing, a matter to a court, provided that the matter falls within the jurisdiction of that court.
The above sections do not require parental assistance and do not specify the parent as the person who must assist the child. The section of the Children’s Act regarding enforcement of rights specifically empowers any person to act on behalf of an affected child, on behalf of a group or class of children or in the public interest.
Section 55(1) of the Children’s Actprovides that:(i) where a child is involved in a matter before the children’s court and is not represented by a legal representative, and (ii) the court is of the opinion that it would be in the best interests of the child to have legal representation, then the court must refer the matter to the Legal Aid Board referred to in section 2 of the Legal Aid Act 22 of 1996.
Implementing measure
The Legal Aid Board is an independent statutory body established under the Legal Aid Act 22 of 1969.The Legal Aid Board derives its mandateinter alia from section28, 34,and 35 of the Constitution and provides arrested or detained persons with legal representation at the State’s expense.
(see
General principles
Non-discrimination (art. 2) / Constitutional Principle: The Right to Equality
Equality lies at the heart of the Constitution. It defines the very ethos upon which the Constitution is premised.
Section 9 of the Constitution provides that:
  1. Everyone is equal before the law and has the right to equal protection and benefit of the law.
  2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
  3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
  4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
  5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
Constitutional Court Cases
Fraser v Naude and Others 1999 (1) SA 1 (CC); 1998 (11) BCLR 1357 (CC);S v Williams and Others 1995 (3) SA 632 (CC) (corporal punishment, juvenile whipping); Du Toit and Another v Minister of Welfare and Population Development and Others, 2002 (10) BCLR 1006 (CC); 2003 (2) SA 198 (CC) (same sex adoption);Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC).
Main Statute [Children’s Act 38 of 2005]
Section 6 of the Children’s Act enunciates the general principles which must guide any actions concerning children. This includes the principle that children should be treated fairly and equitably (section 6(2)(c)) and that children should be protected from unfair discrimination (section 6(2)(d)).
Main Statute[Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000]
ThePromotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 gives effect to section 9 of the Constitution which provides for the enactment of national legislation to prevent or prohibit unfair discrimination and to promote the achievement of equality. South Africa also has international obligations under binding treaties and customary international law in the field of human rights which promote equality and prohibit unfair discrimination.
Implementing measure
The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 creates Equality Courts which have the jurisdiction to hear equality and non-discrimination cases. In terms of section 16 of the Act every High Court is an equality court for the area of its jurisdiction and every designated Magistrate Court is an equality court for the administrative region concerned.
The South African Human Rights Commission is the national institution established to entrench constitutional democracy. It is committed to promote respect for, observance of and the protection of human rights for everyone without fear or favour. (see
For other role players see below. For a comprehensive listsee
Best interests of the child (art. 3) / Constitutional Principle
“The best interests of the child” is a Constitutional principle that underpins every policy and programme developed by the government. Section 28(2) of the Constitutionprovides that a child’s best interests are of paramount importance in every matter concerning the child.
Main Statute [Children’s Act No 38 of 2005 and Legal Aid Act 22 of 1996]
Section 9 of the Children’s Act provides that the best interests of a child are of paramount importance in every matter concerning the child; section 7 sets out the best interests of the child standard, section 8 deals with the application of the standard.
Constitutional Court Cases
Fraser v Naude and Others 1999 (1) SA 1 (CC); 1998 (11) BCLR 1357 (CC); Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC); Minister for Welfare and Population Development v Fitzpatrick 2000 (7) BCLR 713 (CC);2000 (3) SA 422 (CC);Bannatyne v Bannatyne and another 2003 (2) BCLR 111 (CC);Du Toit and Another v Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae)2003 (2) SA 198 (CC);Potgieter v Potgieter SCA215/06;.AD and another v DW and others (Centre for Child Law as Amicus Curiae) [2007] ZACC 27.
(see
In a definitive judgment on the best interest principles as enshrined in section 28(2)M v S (Centre for Child Law as Amicus Curiae) [2007] ZACC 18 the court stated the following at para. [15]:
“The comprehensive and emphatic language of section 28 indicates that just as law enforcement must always be gender-sensitive, so must it always be child-sensitive; that statutes must be interpreted and the common law developed in a manner which favours protecting and advancing the interests of children; and that courts must function in a manner which at all times shows due respect for children’s rights.”
The right to life, survival and development (art. 6) / Maximum Protection
The right to life, survival and development of the child is not explicitly set out in the Constitution but it is protected through various sections of the Constitution. The State must put in place all legal and administrative infrastructure necessary to accord the child the right to life, survival and development.
Section 7(2) of the Constitution requires the state “to respect, protect, promote and fulfil the rights in the Bill of Rights”.
Section 39 of the Constitution obliges a court toconsider international law as a tool to interpretation of the Bill of Rights. The relevant international law can be a guide to interpretation but the weight to be attached to any particular principle or rule of international law will vary.Sections 231-233 of the Constitution regulate the application of international law in detail.
Constitutional Principle: The Right to Life
Section 11 of the Constitution provides that “Everyone has the right to life”. The right is non-derogable (under section 37 of the Constitution under the table of non-derogable rights).
Constitutional Court Case
The matter of M v S (Centre for Child Law as Amicus Curiae) [2007] ZACC 18 again provides guidance. At para. [19] the court stated:
“Individually and collectively all children have the right to express themselves as independent social beings, to have their own laughter as well as sorrow, to play, imagine and explore in their own way, to themselves get to understand their bodies, minds and emotions, and above all to learn as they grow how they should conduct themselves and make choices in the wide social and moral world of adulthood. And foundational to the enjoyment of the right to childhood is the promotion of the right as far as possible to live in a secure and nurturing environment free from violence, fear, want and avoidable trauma.”
In S v Makwanyane 1995 (3) SA 391 (CC); 1995(6) BCLR 665 (CC), Judge O’ Regan stated at para. 327 that the right to life was included in the Constitution not simply to enshrine the right to existence. The Judge continued at para. 326 to state that it is not life as mere organic matter that the Constitution cherishes, but the right to human life: the right to share in the experience of humanity.This concept of human life is at the centre of South Africa’s constitutional values.