Rights & Law
Children's Rights Written Into South Africa's Constitution: What Section 28 Says
South Africa’s Constitution, 1996, affords constitutional protection to the rights and welfare of childrenin considerable detail. Section 28 of the Constitution, located in the Bill of Rights, provides a detailed catalogue of children’s rights.
What this piece covers
What Section 28 Says: The Constitutional Catalogue of Children’s Rights
Section 28 in South Africa’s Bill of Rights spells out a child’s rightsin detail:
- Name and nationality: Every child has the right to a name and a nationality from birth. Naming is the first legal recognition of a child. It is a simple process, but legislators deemed it important to enshrine it in the Constitution, making it a basic right.[2]
- Care: The Constitution guarantees that every childwill have a family and be cared for by a parent or guardian. In the situation of children being removed from a home, they will be cared for with alternative care, including a foster family, a kids village, a care centre, or the home of relatives. The care given depends on the specific circumstances of the child.[3]
- Basic needs: Every child is guaranteed the right to basic nutrition, shelter, and healthcare services - including the constitutional right to social services. This is one of the key reasons why the right to social services is significant for children. [Children’s Institute].[14]
- Protection from abuse and exploitation: The Constitution focuses on children being protected from "maltreatment, neglect, abuse or degradation." Maltreatment can draw on recognisable trends such as the use of a child in a violent video, or physically harming them. Any such maltreatment is a violation of the constitutional rights. There is also explicit protection from "exploitative labour practices" - this means children cannot provide services that are not suitable for their age or that compromise their wellbeing, and child labour laws in South Africa are strict on such practices.
- Legal representation and conditions: Apart from having a lawyer for criminal cases, Every child has the right to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result.[14]
The Best Interests Clause in Section 28(2)
In every issue, every child has the solemn right – This is a constitutional sectioncontained in the Bill of Rights, invoked in a range of matters affecting children. Under the laws of South Africa, the constitution is above the law, meaning that it cannot be changed, and it sets out the founding standard for children's rights.
Section 28 (2) states that “A child’s best interests are of paramount importancein every matter concerning the child.” This is a section that has been invoked in many cases.
Detention and Criminal Justice: Section 28in Practice
The support for children’s rightsin the juvenile justice sector is strong. Section 28 states that “A child may be detained only as a measure of last resort and only for the shortest appropriate period of time”. In Centre for Child Law v Minister for Justice and Constitutional Development and Others, the court relied heavily on this constitutional guarantee.
In Centre for Child Law v Minister of Justice and Constitutional Development, the Centre for Child Law contested specific criminal sentences in the Criminal Law (Sentencing) of Offenders Act 2007, as it provided that children be detained other than as a last resort - this was in violation of the children's rights protection according to Section 28.
The court ruled in favour of the Centre for Child Law, and with protections for children in the Constitution seemingly clear, there have been a number of domestic court challenges in favour of more protections for children apart from what the act provides, across the board
Maintenance and Family Law: Paramount Interests in Everyday Disputes
Legal commentary in De Rebus reviewed judgments surrounding section 28(2) and maintenance – there is a significant trend of individual interests being prioritised in the law.
A section of the report notes: Maintenance law cases can be deeply rootedin South Africa’s constitutional mandate, particularly s 28(2) of the Constitution which guarantees the best interests of the child as paramount in all mattersaffecting children. This means that the court will find against someone trying to shirk their responsibilities to a child - after 1996 when the Constitution came into existence, people have had to face the full force of negligence for abandoning a child under the age of 18.
Ultimately, under South African law, children’s interests are above every other individual opinion or interest – section 28 readily applies and is enforceable in court.
Section 28 in the Broader Children’s Rights Framework
Ultimately, South Africa provides strong constitutional protection for children's rights - not only does the constitution protect children ahead of other laws, but it is also incorporated in domestic law, thus meaning that children can seek recourse in any court.