n South African Journal of Criminal Justice - The impact of children's rights on criminal justice : recent cases

Volume 25, Issue 1
  • ISSN : 1011-8527
  • E-ISSN: 1996-2118



South Africa's criminal justice system has traditionally provided protection for the rights of three categories of persons, namely perpetrators, victims and witnesses - both adults and children. In recent years, however, there has been increasing jurisprudential recognition of a fourth category of affected persons whose rights and interests need to be independently protected. This category is the children of perpetrators (see 1998 (2) SACR 428 (W); 1999 (1) SACR 675 (C) and 2008 (3) SA 232 (CC)). The majority of these cases and subsequent academic literature has dealt almost exclusively with the upholding of children's rights within the context of sentencing primary caregivers (D Erasmus '"There is something you are missing: What about the children?": Separating the rights of children from those of their caregivers' (2011) 25 124; A Skelton 'Severing the umbilical cord: A subtle jurisprudential shift regarding children and their primary caregivers' (2008) 1 351; JD Mujuzi 'Punishment in the eyes of the Constitutional Court of South Africa: The relationship between punishment and the rights of an offender in the sentencing of primary caregivers of children' (2011) 24 164). There is an emerging judicial trend towards considering children's rights in all instances where a court exercises a discretion that will ultimately curtail the right to parental care. It is this trend that the subsequent case descriptions seek to highlight.

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