n Law, Democracy & Development - A foreskin too far? Religious, "medical" and customary circumcision and the Children's Act 38 of 2005 in the context of HIV/Aids

Volume 16, Issue 1
  • ISSN : 1028-1053
  • E-ISSN: 2077-4907



South Africa's Children's Act 38 of 2005, which was under development over the period of 1997 to 2005 and which was finally fully promulgated on 1 April 2010, is consciously respectful of cultural rights. Throughout, sections of the Act affirm the need for respect for a child's cultural attachments, including requiring consideration of culture as a general indicator relating to the best interest of the child.

The South African Law Reform Commission (SALRC) which spear-headed the investigation into the review of the Child Care Act 74 of 1983, the then legislation providing for the welfare of children, identified "children growing up under customary law" as an explicit constituency to be addressed in the law reform process. A chapter on children growing up under customary law regimes is to be found in the 2001 Discussion Paper that was issued by the SALRC. From the outset, the Commission posed questions as to which dimensions of customary law and culture could be assimilated in the omnibus children's legislation that was forthcoming; which customary practices posed risks to children's rights or violated constitutional principles; as well as how best to deal with identified practices which could not be tolerated in protective rights based legislation.

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