n South African Law Journal - The Constitutional Court consolidates its child-focused jurisprudence : the case of : notes

Volume 130, Issue 4
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



The decision in 2012 (2) SA 208 (CC) is significant because of the child-focused approach adopted by the majority. This approach deviates from the majority decision in 2011 (3) SA 274 (CC), which ignored 'the inescapable and overarching fact' of that case: that '[it was] a case concerning children' (ibid para 207, per Skweyiya J). The child-centred approach of Yacoob and Skweyiya JJ, dissenting judges in , was eventually to win the day in . In , the majority of the Constitutional Court acknowledged the impact that the vulnerability of children (and their parents) can have on the exercising of their rights, and assessed the constitutional validity of the challenged statutory provisions from the perspective of their effectiveness in protecting the constitutional rights of children and their carers. Although legitimate criticism has been levelled at the manner in which the court applies the best interests of the child as an independent right (Elsje Bonthuys 'The best interests of children in the South African Constitution' (2006) 20 23), the majority judgment in this case shows the potential benefits arising from such approach, and contributes to clarifying the emerging content of this right. Finally, through their consideration of the right to parental care (s 28(1)() of the Constitution of the Republic of South Africa, 1996) and its relationship with other constitutional rights of children, both the separate concurring judgment and the dissenting judgment lay the foundation for further jurisprudential development of the right to parental care, especially with regard to the quality of parental care required in order for such care to become constitutionally protected.

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