Authored By: Hunadi Sonia-Rose Legoabe
Regenesys Business School
Case Number: (CCT 55/11) [2012] ZACC 1; 2012 (2) SA 208 (CC); 2012 (4) BCLR 329 (CC) (11 January 2012)
Case Name: C and Others v Department of Health and Social Development, Gauteng and Others
Court: The North Gauteng High Court, Pretoria
Date: 11 January 2012
Judge: Justice Bess Nkabinde-Skweyiya, Justice Zak Yacoob (concurring)
1. Introduction
The case of C and Others v Department of Health and Social Development, Gauteng and Others, is a landmark decision in South African constitutional law[1], particularly the Children’s Act. It addresses whether the statutory removal of children, which is governed by the Children’s Act 38 of 2005[2] , permits the state to remove children from families without mandatory judicial oversight, and whether that decision is constitutional[3]. This case is a landmark judicial decision in South Africa on children’s rights, family law, and the administration of justice because the judgment legally enforced the 48-hour automatic judicial review, changed how the state handles child removals, and established strict constitutional boundaries for social workers.
2. Facts of the case
The first applicant, Mr. C, is the father of the 3-year-old daughter, and the second applicant, Ms. M, is the mother of two daughters aged 1 and 4. The third applicant is the University of Pretoria law clinic called “Centre for Child Law.” The first respondent is the Department of Health and Social Development, Gauteng. The second respondent is the City of Tshwane Metropolitan Municipality.
The third, fourth, and fifth respondents are, respectively, the Itereleng Residential Facility for the Disabled, Desmond Tutu Place of Safety, and Pabalelo Place of Safety, which are care facilities under the direction of the Department. The sixth respondent is the Minister for Police, and the seventh respondent is the Minister for Social Development, who is responsible for the administration of the Children’s Act. The first, sixth, and seventh respondents have jointly made submissions in these proceedings and are referred to collectively as the state.
Friday, the 13th of August 2010, Mr. C was at work as a shoe repairman in Pretoria with his minor daughter because his partner was in the hospital giving birth and could not look after their child. Ms. M is a street beggar and was begging with her 2 minor children and an assistant because she is blind, in the same area in Pretoria where Mr. C works. The Department of Health and Social Development had an operation whereby they took all children who were accompanied by beggars on the street without a court order, and on the 13th of August 2010, Mr. C and Ms. M’s children were taken by the social workers and placed the children in a care facility without providing information to the parents as to where their children were placed.
3. Legal issues
Whether the removal of the children per the Children’s Act 38 of 2005 (150-154), without mandatory judicial oversight, is valid and constitutional?
According to section 28 of the Constitution, can the state violate the rights of children and parents/guardians if it is in the best interests of the children?
Does the law hinder the lower-class parents’ access to justice due to the costly process of litigation without consideration of their affordability?
4. Arguments Presented
Applicant’s arguments (Mr. C, Ms. M, and The Centre for Child Law
The applicants argue that Chapter 9 of the Children’s Act 38 of 2005 (ss 150-154) is unconstitutional because their children’s right to parental care, according to Section 28 1 (b), was violated. They argue that they were never told where their children were taken, and they were also not given written reasons or explanations, which violates their right to” Access to information.”[4] and “Access to the courts.”[5].
They argue that the Children’s Act permitted the social workers to hold their children in alternative care for up to 90 days before the matter was legally brought before a Children’s Court; therefore, they were not given the opportunity for the case to be heard in a public hearing before the court. They argue that section 28 (2) was violated because the sudden decision to take their children and separate them caused them trauma, and that the state did not consider the mental damage to the children, therefore failing to act in the “best interests of the children.”
Respondent’s arguments
The respondents argue that the safety of the children is of paramount importance and that the laws allow intervention by the social workers if they believe that there is a safety risk. The High Court acts as the upper guardian for all the children in the Republic of South Africa[6], so it has the duty to protect the children, and they argue that the purpose of Chapter 9 Section 151-152 of the Children’s Act is to protect children in immediate danger without having to go through the tedious process of getting a judicial order.
They argued that the 90 days that are permitted by the Children’s Act also gave them time to conduct their investigations and conclude, so that they can provide the court with accurate information and a concise report. They argue that they did not hinder the parents from access to the court and did not perform any actions that led to the parents not being able to approach the court.
5. Court’s Analysis
Due to the nature of the case, multiple judges of the court provided their own analysis and reasoning; however, they unanimously found the statutory framework unconstitutional.
Judge: Skweyiya J- Main Judgement
He found that it is the state’s primary duty to support and preserve the family unit and not dismantle it, and that the children’s right to family and parental care was violated[7]. The judge acknowledges that the sudden decision to remove the children from their parents was deeply traumatic and is subject to checks. He found that the children should not have been removed from the care of their parents unless the family environment was proven to be harmful or dangerous for the children, and that “alternative care” is a secondary safety net. The judge observed that although the intention of the immediate removal of the children was for the concern of their safety, the execution of those intentions did more harm than help.
He found that the decision to keep the children for 90 days in the care facility was not in the best interests of the children because a judge did not order it necessary for the children. The 90 days blocked the court’s protective jurisdiction during the most critical period of the separation. The judge found that the law was biased against the families because they were poor and could not afford the resources that could have assisted them during that time, and that they were making an automatic state-initiated review a constitutional necessity[8].
The judges found that the limitation of rights was not justifiable in an open and democratic society. They agreed that the protection of children from harmful circumstances was the priority above all else, and although there was no rational reason why child protection required taking the children for 90 days without contact with parents, before the Children’s court inquiry. There was a better alternative that could have been used, which allowed the immediate removal of the children and forced an automatic court review immediately afterward.
Judge: Justice Zak Yacoob (concurring)
In addition to the main judgement, the issued warrant for removal that was approved by the magistrate was issued in ex parte,[i] without the parents of the children in attendance[9]. The judge further argues that, although the issue of the warrant for removal was made ex parte for urgency, it should have been followed by an inter-parte[ii] where they are in attendance. The judge states that the magistrate must be impartial and look at both pieces of evidence in an open court within 48 hours to validate the decision to keep the children in a state care facility.
6. Judgment and Ratio Decidendi
The court ruled in favour of the parents, and the Constitutional Court confirmed that the Children’s Act 38 of 2005, sections (151-152) are unconstitutional for failing to provide automatic judicial oversight when the children were removed from their parents[10]. The ratio decidendi dictates that state-mandated removal of a child requires immediate judicial oversight to protect the best interests of the child and rights to family care.
7. Conclusion
The Constitutional Court unanimously agreed that parts of the Children’s Act were unconstitutional, and the “solution” for the quick removals of children from the care of parents/guardians violates their rights, and that judicial reviews for children must be done before a decision is made for children to be placed in a state care facility. The court ordered an immediate solution requiring a 48-hour deadline for judicial review and mandated the state to pay legal costs, reinforcing the right to due process.
Reference(S):
Legislation
Constitution of the Republic of South Africa, 1996
The Child Care Act 74, 1983
Statues
Children’s Act 38, 2005
Books
Boezaart T, Child Law in South Africa (2nd edition, Juta 2017)
Heaton J, The Law of Persons in South Africa (2nd edn, LexisNexis 2017)
[1] C and Others v Department of Health and Social Development, Gauteng and Others (CCT 55/11) [2012] ZACC 1; 2012 (2) SA 208 (CC); 2012 (4) BCLR 329 (CC) (11 January 2012) <https://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZACC/2012/1.html&query=childrens%20near%20rights> accessed 22 May 2026
[2] Chapter 9 (152) of the Children’s Act 38 of 2005 provides in relevant part:“Removal of child to temporary safe care without court order”
A designated social worker or a police official may remove a child and place the child in temporary safe care without a court order if there are reasonable grounds for believing-
that the child- (i) is in need of care and protection; and (ii) needs immediate emergency protection;
that the delay in obtaining a court order for the removal of the child and placing the child in temporary safe care may jeopardise the child’s safety and well-being; and
that the removal of the child from his or her home environment is the best way to secure that child’s safety and well-being.
If a designated social worker has removed a child and placed the child in temporary safe care as contemplated in subsection (1), the designated social worker must-
without delay but within 24 hours inform the parent, guardian or care-giver of the child of the removal of the child, if that person can readily be traced;
not later than the next court day inform the relevant clerk of the children’s court of the removal of the child;
within 24 hours and without delay, report the matter to the relevant provincial department of social development of the removal of the child and of the place where the child has been placed; and
ensure that the- (i) matter is placed before the children’s court for review before the expiry of the next court day after placement of the child in temporary safe care; and (ii) child concerned, and where reasonably possible, the parent, guardian or care-giver, as the case may be, are present in the children’s court.
[3] Section 28 of the Bill of Rights within the Constitution states:
Every child has the right to –
a name and a nationality from birth;
family care or parental care, or to appropriate alternative care when removed from the family environment;
basic nutrition, shelter, basic health care services and social services;
be protected from maltreatment, neglect, abuse or degradation;
be protected from exploitative labour practices
not be required or permitted to perform work or provide services that – (i) are inappropriate for a person of that child’s age; or (ii) place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development;
not be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be – (i) kept separately from detained persons over the age of 18 years; and (ii) is treated in a manner, and kept in conditions, that take account of the child’s age;
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; and
not be used directly in armed conflict, and to be protected in times of armed conflict.
A child’s best interests are of paramount importance in every matter concerning the child.
In this section “child” means a person under the age of 18 years.
[4] Section 32 (1-2) of the Bill of Rights within the Constitution states:
Everyone has the right of access to—
any information held by the state; and
any information that is held by another person and that is required for the exercise or protection of any rights.
National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.
[5] Section 33(2) of the Bill of Rights within the Constitution states:
“Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.”
[6] Simon Dippenaar, “The court as upper guardian of minor children” (December 17, 2024) Simon Dippenaar & Associates <https://divorceattorneycapetown.co.za/the-court-as-upper-guardian-of-minor-children/> accessed 22 May 2026
[7] C v Department of Health and Social Development, Gauteng [2012] ZACC 1, 2012 (2) SA 208 (CC) [24]
[8] Christa Rautenbach, “Introduction to Legal Pluralism in South Africa” (5th edtion, LexisNexis 2018)
[9] C v Department of Health and Social Development, Gauteng [2012] ZACC 1, 2012 (2) SA 208 (CC) per Yacoob J
[10] CJ Davel and AM Skelton, “Commentary on the Children’s Act” (Juta 2012)
[i] “Only one party, the applicant, presents their case to a judge.”
[ii] “A hearing where both parties are present”
