Authored By: Terrence Tanaka Masango
Boston City College
Introduction
Apartheid? The spade that divided a country, a people, a nation, and humanity in the country of South Africa. Apartheid was a national policy pre-1994 that was designed to separate people by hierarchy, white and non-white. The latter category was stripped of its inherent human rights, and non-whites and their children were left vulnerable to the law and society. All forms of discrimination, abuse, and exploitation were common norms in this era. This article hopes to explore and provide a comparison of the rights of children pre- and post-apartheid.
The Constitution of the Republic of South Africa, 1996, is the foundation of the legal framework of the post-Apartheid South Africa, whereas pre-Apartheid South Africa was regulated by Roman and Dutch law in addition to English law. Depending on the race, one would enjoy limited or full rights. In the Case of children of non-white persons, their rights to education, right to dignity, security, family, and equality were impaired. The terms White and non-White (coloured, Indian, and Bantu or black) revealed the striking imbalance of rights across categories.
Structure and significance Outline
This research will provide a critical analysis of each right pre- and post-apartheid, seeking to comprehend the development of law and the journey of upholding universal rights declarations. The article will be divided into three phases: Phase one, Legal Framework through Legislation, Case Law, and Scholarly work, Phase 2: Discussion and Comparative Analysis, and Phase Three: References.
Phase 1: Legal Framework through Legislation, Case Law, and Scholarly Work
What is apartheid?
Apartheid in the English language is referred to as Apartness, which was the aim of the National Party. It was a policy that governed relations between whites and the non–white majority of South Africa. Although segregation of people was commonplace, by the 1950s, the Population Registration Act 30 of 1950 was enacted. This precedes the establishment of a legal framework that legitimizes the influence of apartheid over key areas of South African society, including race classification, education, where they could live, work, the type of education that they could be taught under, and whether they could vote, who they could associate with, and the segregated public facilities that were available for usage.
International view of Apartheid
The Apartheid Convention was the structured opposition that had its roots in the United Nations prior attempts to oppose the apartheid policy, which lasted from 1948 to 1990. The United Nations condemned the policy as contrary to Articles 55 and 56 of the Charter of the United Nations after 1960. By the year 1973, the apartheid convention was the determination of the United Nations, voting 91 in favor and 26 in abstentions. The convention internationalized apartheid as a crime against humanity and the inhuman acts; systemic racial oppression through violence, exclusion and discrimination
The Impact of apartheid on the rights of children
As mentioned beforehand, the rights of children pre and post- apartheid will be explored Commencing with the right to education, dignity, equality, Security and Family.
Right to Education
Under the Apartheid regime, the Bantu Education Act 42 of 1953 was introduced to target the children of the nation. Bantu education was a system in which mainly black children were impacted. It was designed to limit the knowledge and mental development of black children and reduce the future opposition of Non-whites. This was an attempt by the national party tocontrol black education to prevent future opposition like the ANC(African National Congress).
The post-apartheid era displays a stark departure in terms of the differentiation of children’s rights. Section 29(1) of the Constitution of the Republic of South Africa states, “that everyone has the right to a basic education, including adult basic education.”
In the case of the Governing Body of the Juma Musjid primary school v Essay No And others were a leading case that contribute in the exclusion of children based on race.
The constitutional court ruled that the right disclosed in section 29(1) of the Constitution denied learners to be excluded based on discriminatory grounds.
Right to dignity
Under the apartheid system, children were forced to attend schools that were poorly resourced and racially segregated. These schools were inferior in nature and erased the possibility of access to quality education. Children were under the classification of humiliating racial classifications of Coloured, Indian and Black via the Population Registration Act 30 of 1950. Though this classification was a reference to their race, it represented a deeper violation of their right to dignity, as a sense of inferiority was reinforced through the law.
Post- Apartheid the the new ruling party enacted section 10 of the constitution that states that “everyone has the right to dignity and the right to have their dignity respected and protected.”
The case of Dawood v Minister of Home Affairs notes that courts must not subject children and their families to discriminatory grounds or inhuman treatment by the state, in this case, which was the denial of residency and family unity to children and their families based on racial and nationality differences. The court emphasized the right to equality in section 9 and the right to dignity in section 10 of the Constitution, that children should not be treated as inferior
Lain Currie and Johan de Waal state that dignity is a foundational constitutional value that highlights equality and non-discrimination. The view shared by the scholars is that children are extremely vulnerable in discriminatory systems such as apartheid, and the state must demonstrate a proactive role in the defence of children.
Right to Equality
The apartheid policy concerning the concept of equality reflected inequality in the children of the country. The Population Registration Act 30 of 1950 segregated the children into different races, assigning a value on their existence and contradicting a universal right. This limited their access to education and opportunity. Failing to meet formal and substantive equality
The country has developed from its previous framework. Through its constitution, a couple of sections will be revealed, such as. Section 9(1) of the Constitution states, “Everyone is equal before the law and has the right to equal protection and benefit of the law.” And Section 9(3) states that “The state may not unfairly discriminate, directly or indirectly, against anyone on grounds including race, colour, ethnic or social origin, gender, age, disability, religion, language, or birth, among others.”
In the case of Prinsloo v Van der Linde, the Consitutional Courts ratio decidendi was that Apartheid laws would fail the Prinsloo test. As it failed a legitimate governmental purpose, it was inherently unfair, and it entrenched systematic disadvantage espcially on children, was unconstitutional as it violated children’s access to education and services based on race.
Right to Family Care
During the governance of apartheid laws, families were forcibly evicted from their residences and moved to rural settlements, migrant labour settlements, such as pass laws that required black workers, in most cases, parents to travel to urban settlements, with an identification document that functioned like a passport. Urban to rural separation and migrant labour systems separated children from parents, disrupting family structures.
Section 28(1)(b) of the Constitution states that ”Children have the right to family care and protection.”
In the case of Centre for Child Law v Minister of Home Affairs, the court ensured children could remain with parents; it challenged state practices that endangered family unity. In addition, Richter & Dawes argued that apartheid eroded children’s family stability, impacting development and social cohesion
Right to Safety and Security
The Apartheid Government attempted to ensure its system of governance was maintained. Though protests and industrial action commenced, the State, in response, enforced violence, harsh policing, pass laws, and forced removals, causing child vulnerability under pass laws and forced removals.
The Constitution states that in section 12(1)(c), “Freedom from all forms of violence in homes and schools”.
The childrens act of 38 of 2005 was enacted. The act is an evolving legal system that is structured to protect and promote the rights and well-being of children throughout the country, and ensures that the children’s best interests are upheld. The act, in its framework, executes the constitutional rights mentioned above and aligns with international conventions such as the United Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.
Phase 2: Discussion and Comparative Analysis
Issue:
Whether there has been a positive evolution in the legal rights of children in South Africa post-apartheid.
Application
Children’s rights in South Africa have been revolutionized compared to its former Legal system, which was founded on apartheid policies. This discussion will focus on five aspects of childrens right, beginning with the right to education. In terms of the right to education, the case of Governing Body of the Juma Musjid primary school v EssayThe Constitutional Court concluded that it was discriminatory and unlawful for children to be excluded from basic or adult education. This aligns with the constitutional value of section 29 (1). As a result, children’s rights relating to education are now protected.
The dignity of children was violated in the time of apartheid, the value of their humanity was deemed inferior, and race classification was made to divide and weaken potential resistance. The constitutional value of the right to dignity is emphasised heavily by Lain Currie and Johan de Waal, who state that it was systematically unfair.
Under apartheid, children’s rights were systematically violated. The Population Registration Act 30 of 1950 entrenched inequality, restricting access to education and opportunities, while families were separated through forced removals and migrant labour systems, undermining family care.
Children were also exposed to state violence, harsh policing, and discriminatory laws, limiting their safety and security. Post-apartheid, the Constitution guarantees equality (ss 9(1) & 9(3)), family care (s 28(1)(b)), and protection from violence (s 12(1)(c)). The Children’s Act 38 of 2005 further enforces these rights, aligning national law with international standards to safeguard the best interests and development of children.
In view of this, the South African legal system, once rooted in discriminatory policies, now aligns with constitutional and international child rights standards
Conclusion:
Children’s rights in South Africa have significantly evolved post-apartheid.
Legal frameworks now protect education, dignity, family, and safety, but there is implemenation gaps in rural schools or child welfare services, the aftermath of apartheid policies never left its remaining issues, and non-white communities are still experiencing or still facing poor resources in rural settlements.
Ongoing implementation ensures continued progress and alignment with international norms.
Phase Three: References
Cases
- Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC)
- Prinsloo v Van der Linde 1997 (3) SA 1012 (CC)
- Governing Body of the Juma Musjid Primary School v Essay No and Others 2011 (8) BCLR 761 (CC)
- Governing Body of the Juma Musjid Primary School v Essay No and Others [2000] ZACC 8
- Centre for Child Law v Minister of Home Affairs 2004 (6) SA 557 (CC)
South African Legislation
- Constitution of the Republic of South Africa, 1996 ss 9(1), 9(3), 10, 12, 12(1)(c), 28(1)(b), 29(1)
- Children’s Act 38 of 2005 s 2
- Population Registration Act 30 of 1950 ss 1–2
- Group Areas Act 41 of 1950
- Separate Representation of Voters Act 46 of 1951
- Separate Amenities Act 49 of 1953 ss 3(a)–(b)
- Bantu Education Act 42 of 1953
- Bantu Authorities Act 68 of 1951 s 2
- Black Homeland Citizenship Act 26 of 1970 s 3
- Natives (Abolition of Passes and Coordination of Documents) Act 67 of 1952 s 4
- Pass Laws Act 27 of 1952
- Forced Removals Act 19 of 1950
- Criminal Law Amendment Act 8 of 1953 s 3
Books / Scholarly Works
- I Currie and J de Waal, The Bill of Rights Handbook 6th ed (Juta 2013) 53, 131, 272
International Instruments
- Charter of the United Nations (1945) arts 55–56
- International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) UNGA Res 3068 (XXVIII) art II
