Intro to South African Law

• The law aims to ensure order, peace, and certainty in society.
• There is overlap between law and normative systems like religion and community morals.

Statutory Law: Constitution

• The Constitution is the supreme law binding everyone in the country.
• It is based on the values of human dignity, freedom, and equality.
• Chapter 2 of the Bill of Rights protects fundamental human rights derived from these values.

Classification of Law: Public Law

• Public Law regulates the relationship between the state and its subjects.
• This creates a vertical, unequal dynamic, because the state always acts with authority.

Classification of Law: Private Law

• Private Law regulates relationships between people, their rights, and obligations.
• This creates a horizontal, equal dynamic, because there is a power balance.
• It concerns relationships between citizens.
• Family and children’s rights, as well as the work of social workers, fall under Private Law.

Sources of South African Law

• Constitution

Sources of South African Law: Legislation

• Legal rules are laid down by the legislature and are put in writing.

Sources of South African Law: Case Law

• Decisions made by courts.

Sources of South African Law: Common Law

• This Law exists as a result of SA legal history; it is influenced by Roman-Dutch law and English Law.

Sources of South African Law: Customary Law

• Unwritten law of blacks in SA
• Fixed practices people live by because they regard it as law.

Sources of South African Law: International Law

• Ratified International Law must be incorporated into domestic/international legislation.

Bill of Rights Importance

• Chapter 2 sets out the basic human rights everyone is entitled to.
• Because of subsidiarity, infringements should first seek remedy in the specific legislation, before the Constitution.
• For example, issues with a foster care grant should be addressed within foster care legislation.

Bill of Rights: Key Sections

• Section 9: Equality, with section 9(3) prohibiting unfair discrimination based on gender, marital status, sexual orientation, and age.
• Section 10: Human dignity
• Section 11: The right to life
• Section 12: The right to freedom and security of person
• Section 14: The right to privacy

Bill of Rights: Social Welfare

• Section 27 guarantees access to social security, including appropriate assistance, for those unable to support themselves and their dependents (s27(1)(c)).
• The state must take reasonable legislative and other measures, to progressively realize these rights (s27(2)).

Bill of Rights: Children’s Rights

• Section 28 deals with Children's Rights.
• Every child has a right to a name and nationality from birth (s. 28(1)(a)).
• Birth must be registered in terms of the Births and Deaths Registration Act 51 of 1992
• Every child has a right to family, parental, or appropriate alternative care (s. 28(1)(b)).
• Parental care also includes family care, establishing a child's right against the extended family.
• It also involves basic nutrition and shelter (Sec.28(1)(c)).
• Guarantee's Protection from abuse, degradation and neglect, as well as protection against child labor (Sec.28(1)(d), Sec. 28(1)(e)-(f)).
• Guarantees re Detention; and Legal aid (Art.28(1)(g), Sec. 28(1)(h)).
• Section 28(1)(i): armed conflict
• The best interest of the child is the determinant factor in each case. Includes a definition of a child as someone under 18 years of age (Sec. 28(2), Sec. 28(3)).

Children’s Act 38 of 2005

• Encompasses parental responsibilities, guardianship, children in need of care, and adoption.
• Chapter 4 concerns establishment, status, and jurisdiction with no inherent jurisdiction meaning they are bound to act.

Maintenance Act 99 of 1998

• Regulates payment and enforcement of maintenance.
• Both parents are equally responsible for paying maintenance.

Other Relevant Acts

• Divorce Act 70 of 1979 involves mediation, as in the Mediation in Certain Divorce Matters Act 24 of 1987, to show the role of the family advocate in divorce proceedings.
• Matrimonial Affairs Act 37 of 1953 concerns parents' divorce or separation.
• Marriage Act 25 of 1961 involves marriage between minors, and discusses whose consent is needed.

Children's Court: General Information

• Every magistrate’s court serves as a Children’s Court for its area of jurisdiction per Sec. 5(1) CA.
• Jurisdiction is normally where the child resides.
• The presiding officer is a Magistrate or Assistant-Magistrate.

Children’s Court Assistant

• This role can be filled by a social worker
• They generally assist the court, per Sec 7(2)

Appointment of Intermediaries

• Intermediaries assist the child and ensure information conveyed to the court is correct per Sec 61(2) CA.

Magistrate

• May order removal of child during proceedings if the child is afraid, anxious, or when the accused is testifying with the child present per Sec 60(1) CA.

Child's Right to Access

• Sec 14 states a child has a right to access to court.

Child's Right to Participate

• Children have the right to participate in court proceedings, depending on their emotional maturity and understanding per Sec 61 CA

Children’s Court Assistant Responsibilities

• The assistant can attend hearings, conduct examinations and cross-examinations, address the court, and request necessary reports.

Children’s Court Jurisdiction

• The court's authority stated in Sec. 44 of the Childrens Act consists of investigations to determine children in need of care, as well as decisions about parental rights, adoption requests and permission to marry.

Children's Right Clause

• This section, also known as the children’s right clause, aims to protect children and not their parents.

Aims of the Children’s Act

• Preservation and strengthening of families.
• Implementation of the consitutional rights
• Fulfilling SA’s obligations regarding children’s well-being as per international instruments.
• Strengthening community structures for care and protection of children.
• Protecting children from exploitation, physical, or emotional harm.

International Treaties

• SA is a party to the United Nations Declaration on the Rights of the Child
• As well as the African Charter on the Rights and Welfare of the Child
• Additionally, the Hague Convention on Protection of Children and Cooperation in respect of Inter-Country Adoption.

Legal Representation

• Section 6(4) allows the court to appoint legal representation in divorce matters
• Usually, the court appoints a curator (someone who is appointed by the court to look after the maintenance/needs of the child).

Situations for Legal Representation

• The court must appoint a legal representative for the child if requested by the child, recommended by a social worker, or if the child appears abused or neglected.
• A legal representative must be appointed if a recommendation for the child's placement is contested by the child, parent, or caregiver.
• The court must also appoint a legal representative if two or more adults apply separately to have the child placed with them, if the court terminated the legal rep, or if substantial injustice would otherwise result.

Key Principles of UN Convention

• Protection, prevention, provision, and participation.

Article 12 of UN Convention

• State parties shall assure children who can form their own views the right to express those views freely in all matters affecting them, with views given due weight.
• Children should have the opportunity to be heard in judicial and administrative proceedings, either directly or through a representative, consistent with national procedural rules.

Article 4(2) of the African Charter

• Opportunity will be provided in all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views,
• Contains a threshold requirement that the child must be capable to express their own view (communicate).

Constitutional Law: Legal Rights

• Section 28(1)(b) and Section 10 of Chapter 2 of the Childrens Act 38 of 2005 deal with legal representation and participation.
• Every child can participate in any matter and views expressed will be considered, if mature enough

Section 32 of the Childrens Act

• Obliges holders of parental responsibilities and rights to consider the child's view and wishes when making decisions

Upholding the Best Interest of the Child

• The principle is a golden thread in ALL matters, and it is entrenched in Section 28(2) of the Constitution.

Customary Law

• Customary law is fixed practices in accordance with which people live by because they regard it as law.
• It protects the family unit, with children classified by parents’ status at birth.

Sexual Offences: Common Law Definition

• Rape consists of intentional and unlawful sexual intercourse by a male person with a female person without her consent
• Consent serves as a complete defense.
• The definition only applies when slight penetration occurs and only to a living female.

Sexual Offences: Children’s Act

• The sexual offences against children are trafficking, abuse, neglect, abandonment, and failure to report commercial sexual exploitation.

Sexual Offences: Criminal Law Amendment Act

• Rape includes females as perpetrators and males as victims while also including coerced rape and sexual assault.

Introduction To Socio-Economic Rights

• SER creates entitlements to material conditions for human welfare and places an obligation on the state to act positively
• Also known as second-generation-, welfare, or red rights
• Examples of SER: rights such as food, housing, healthcare, water etc.

The transformative SA Constitution

• This Constitution entrenchs the importance of positive obligations related to socio economic rights
• It does not only place limit on power, but requires power be used to advance freedom, equality, dignity, and social justice.
• Keeps government accountable, stating the limitations of that accountability.

SER Role

• Duty on the state to implement, playing roles in building legislative action and policy making, indicating affirmative steps must be taken to give effect because they are enforceable.

Three Groups of Socio-Economic Rights

• Qualified SER (SS 26 AND 27), prescribe positive duties and are formulated as access rights.
• Basic SER (S 29), not formulated as access rights.
• SER Formulated as prohibitions of certain forms of conduct concerning things like arbitrary evictions.

Non-Explicitly Formulated SER

• EX; Right to Life
  • The state must sustain life, not just refrain from ending it.

Government Duty

• 7(2), The state must respect, protect, promote and fulfil.

Relationship Between Legislative Translation and SER

• Through translation is how socio-economic rights are made into legal rights
• Legislator > Executive and State Administration > Courts
• Protected under multiple bodies

Importance of Statutory SER

• Creating requirements that are more detailed and concrete.

Right to Social Security

• Section 27 covers the right to social security, with 27(1)(c) stating that everyone has the right to access it, including appropriate social assistance.

The Right to Social Security

• Section 27(2) Requires the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.

Meaning of Social Protection

• a way to describe concepts involving social protection

Social Insurance

• contributionary schemes of social protection, in terms of which benefits for a variety of possible contingencies are 'earned' through the payment of contributions.

Social Assistance

• Terms in which individuals or groups receive ‘need-based assistance from public funds' without themselves ever having contributed directly to the scheme.

ILO Convention Requirements

• The body is expected to assist with: Sickness, Maternity, Employment injury, Unemployment and Old age and death, medical care and family subsidies,

Requirements from Taylor Commision

• Income, asset, and poverty management skills

ILO and UDHR Instruments

• Article 12: everyone, as a member of society has the right to social security
• Security in event of - Unemployment, Sickness, Disability, and Widowhood,
• UDHR Article25 (1): food clothing - housing medical care

Regional Law Agreements

Both

• The African Charter on Human and People’s Rights
• The African Charter on the Rights and Welfare of the Child