oa Comparative and International Law Journal of Southern Africa - Child custody and race in the light of the new South African Constitution: a comparative approach

Volume 28, Issue 3
  • ISSN : 0010-4051



The factor of race in child placement issues before the courts in the post-apartheid South Africa is complicated at the outset by the fact that all South African precedents on the matter originate from legislation which clearly advocated racial segregation. The existence, for many years, of the Prohibition of Mixed Marriages Act in South Africa is one of the many reasons for the scarcity of reported case law on interracial custody disputes or proceedings. The manner in which race was approached in the South African adoption context, however, may give an indication as to how exactly the factor of race in child placement was viewed and would probably have been applied in custody proceedings. The binding force of the constitution will apply to courts as 'organs of state'. It follows that the court's discretion in deciding on child placement matters will be subject to constitutional scrutiny. Constitutional provisions which may be raised in the context of child placement are the equality provisions, and though not particularly relevant for the purposes of the present study, freedom of religiion, freedom of association, freedom and security of person, freedom of language and culture and freedom of movement.

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