Beyond the Headlines: Understanding the Legal Gaps in Combating Child Abuse at Home

Abstract

This article examines why child abuse within families remains neglected in South Africa despite a strong legal framework.[1] It highlights gaps between constitutional rights, criminal law, and the Children’s Act 38 of 2005, showing how delayed reporting, weak enforcement, and institutional failures undermine protection.[2] Using the Eldorado Park case as a focal point,[3] it compares South Africa’s approach to international standards[4] and other African jurisdictions.[5] The article concludes with policy recommendations to strengthen state capacity, close enforcement gaps, and ensure children’s constitutional rights to dignity, equality, and security are effectively upheld.[6]

Introduction

The killing of four-year-old Liquethan Kiewietse in Eldorado Park, reportedly by her father, highlights ongoing failures in South Africa’s child protection system. This case reveals structural weaknesses that prevent timely intervention, despite a comprehensive legal framework. Child abuse destabilizes families and communities, causing lasting harm. The Preamble to the Children’s Act 38 of 2005 affirms that protecting children’s rights is essential to community well-being. However, repeated incidents demonstrate a gap between legal provisions and real-world outcomes. This article examines these gaps, focusing on the relationship between criminal, child protection, and constitutional law, and emphasizes the need for substantive reforms to ensure effective protection for children.[7]

Research Methodology

This article employs a literature-based methodology, drawing on primary legal sources, including the Children’s Act 38 of 2005, its amendments, and relevant constitutional provisions.[8] Secondary materials, such as scholarly articles, policy papers, and child protection studies, are also examined to provide context and critical analysis.[9] The research approach is both analytical and comparative, evaluating South Africa’s legal framework on intrafamilial child abuse and situating it within international standards, particularly the United Nations Convention on the Rights of the Child (UNCRC).[10] Brief comparisons with jurisdictions such as Kenya and Zambia are included to identify common challenges and inform potential reforms.[11][12]

Main Body

Legal Framework

The Children’s Act 38 of 2005 is South Africa’s central law on child rights and protection.[13] It enforces constitutional guarantees[14] and sets standards for childcare, protection, and parental responsibilities. Abuse covers intentional harm, including physical, sexual, and emotional abuse, while neglect means failing to provide for a child’s basic needs.[15] At the core of the Act is the “best interests of the child” principle, requiring courts and officials to prioritise a child’s safety, development, and well-being in all decisions.[16]

The Act emphasises the importance of raising a child in a stable family or, if not possible, an alternative resembling one.[17] It obliges the state to shield children from mistreatment, exploitation, neglect, and humiliation.[18] Key tools include the National Child Protection Register, which records abuse complaints, convictions, and court findings, serving both protective and policy functions.[19] Access is restricted to safeguard privacy. The Act also provides for temporary safe care, allowing placement in shelters, foster homes, or approved facilities while awaiting long-term decisions explicitly excluding police cells and prisons.[20]

The Act further requires that children in need of care, such as those in child-headed households or victims of child labour, be reported to social workers for investigation.[21] By creating this framework, the law attempts to merge constitutional rights with practical protective measures. However, while the legislation is progressive on paper, its effectiveness relies heavily on consistent enforcement, resources, and inter-agency coordination.

Judicial Interpretation

The Children’s Act 38 of 2005 establishes Children’s Courts, specialised forums designed to safeguard children’s rights and welfare. These courts are courts of record, equivalent to district magistrates’ courts, generally exercising jurisdiction over the child’s habitual residence. They adjudicate matters including children in need of care, foster placements, adoption, and child-headed households, and may issue orders for alternative care, placement in child and youth care facilities, or temporary safe care pending further decisions.[22] Certain complex matters, such as artificial insemination, international child abduction, surrogate motherhood, the age of majority, and protection of a child’s property, remain within the exclusive competence of the High Court.[23] The Act reaffirms the High Court’s inherent jurisdiction as the superior guardian of minors. Broad legal standing allows interested individuals, public representatives, or groups to approach competent courts.[24] Guardianship and care orders may be granted by either forum.[25] Court procedures prioritise the child’s best interests, incorporating expert reports and restricting publication to safeguard dignity and privacy.[26][27]

Critical Analysis

Despite the progressive framework of the Children’s Act 38 of 2005, a gap exists between legislation and practice. Many African children, especially those in conflict with the law, are unaware of their legal rights, leaving them vulnerable to exploitation.[28] Despite provisions for legal representation, many young offenders appear unrepresented, limiting their engagement with the justice system.[29] Similar issues occur in Zambia, where minors often lack representation and face poor conditions.[30]

The intersection of customary law and statutory rules poses another challenge. Customary practices influence juvenile justice in South Africa, Kenya, and Zambia, often conflicting with international human rights norms, including the UN Convention on the Rights of the Child.[31][32] Some customs may discriminate against children or allow abusers to evade accountability. For instance, in Kiribati, formal apologies can reduce sexual assault penalties,[33] and in Swaziland, customary courts have been lenient toward male abusers.[34]

The Act’s effectiveness relies on professional expertise, infrastructure, and resources, particularly social workers.[35][36][37] Proper training and dedicated courts are essential to ensure statutory safeguards translate into real protection.

Recent Developments

Since 2005, the Children’s Act has been amended repeatedly to strengthen the legal framework. Key changes include replacing the long title in 2007,[38] updating the Table of Contents in 2007, 2013, and 2016,[39] and revising sections and terminology, such as the definition of “abandoned child.”[40] Section 152A, on reviewing decisions to remove a child without a court order, was added and amended between 2018 and 2022.[41]

Alongside these legislative updates, the Department of Social Development has introduced inter-sectoral child protection policies,[42] moving toward a more coordinated and resourced system. Yet, gaps between law and practice persist, limiting full realisation of children’s rights. Effective implementation demands sustained oversight, adequate resources, and committed effort from government, courts, civil society, and communities. Only through such coordinated action can South African children’s rights and welfare be genuinely secured.

Suggestions

Child protection and juvenile justice must be reinforced through legislative reform, judicial commitment, and active civil society engagement. The priority is to close the gap between law and practice while ensuring the child’s best interests remain paramount.[43]

Legislative Improvements

• National Strategies and Standards: Parliament should adopt and regularly update binding norms on child welfare, based on evidence and global best practice.[44]
• Clear Legal Provisions: Laws must define family and state duties, set intervention thresholds, and fully integrate the UNCRC into national law.[45]
• Diversion and Restorative Justice: Expand and fund diversion programmes, using restorative justice rooted in African values like Ubuntu.[46]
• Mandatory Reporting & Vetting: Enforce mandatory reporting of abuse and establish a national vetting system to bar offenders from child-related work.[47]
• Data Systems: Create a central database to track offenders, interventions, and outcomes for accountability.[48]

Role of the Judiciary

• Child-Centred Proceedings: Ensure best interests of the child, minimise adversarial processes, and guarantee legal representation.[49]
• Remedial Powers: Courts should suspend inconsistent laws, order remedies, and compel state compliance.[50]
• Jurisprudence: Higher courts must review custodial sentences to build consistent child rights law.[51]
• Training: Ongoing training for judges and court staff to strengthen sensitivity and alignment with international norms.[52]

Role of Civil Society

• Advocacy: CSOs should hold the state accountable and push for reform.[53]
• Community Education: Raise awareness on child rights and harmful practices.[54]
• Service Provision: Provide early intervention and ADR services, with proper state recognition and funding.[55]
• Legal Aid: Offer representation where state aid is lacking, including participation as amicus curiae.[56]

Conclusion

The UN Convention on the Rights of the Child (UNCRC) has spurred significant progress in African countries such as South Africa, Kenya, and Zambia.[57] These nations have enacted laws safeguarding children’s rights to protection, development, and participation, emphasising the child’s best interests, early intervention, and restorative justice.[58]

Nevertheless, gaps persist between law and practice, compounded by limited resources, low public awareness, and lingering colonial-era legal systems.[59][60] Effective child protection requires investment, intergovernmental coordination, and culturally sensitive, community-based approaches. Children’s dignity and vulnerability impose a moral and constitutional duty on the state and society.[61][62][63] Only through collaborative enforcement and capacity building can children’s rights move from aspirational ideals to tangible protections.

Reference(S):

Legislation

• Children’s Act 38 of 2005.
• Constitution of the Republic of South Africa, 1996.
• Regulations Relating to the Children’s Courts, International Child Abduction and Inter-country Adoption, GN R924 in GG 28096, 2005.
• Children’s Amendment Act 41 of 2007.
• Children’s Second Amendment Act 18 of 2016.
• Children’s Amendment Act 17 of 2016.
• Children’s Amendment Act 7 of 2018.
• Child Justice Act 75 of 2008.
• Children Act (Kenya) 2001.
• Juveniles Act (Zambia) 1956.

Reports, Theses & Journal Articles

• Agotse, Cynthia Dela, Juvenile Justice in Africa: An Assessment of Adherence to International law on Preserving the Rights of Child Offenders (MA Thesis, University of Manitoba 2018).
• Mathews, Shanaaz et al., Towards a More Comprehensive Understanding of Child Abuse in South Africa: A Review of Research and Policy (Children’s Institute, UCT 2020).
• Sloth-Nielsen, Julia, Protecting South Africa’s Children: A Legal Assessment of the Children’s Act 38 of 2005 (Juta 2008).
• Skelton, Ann, “Restorative Justice as a Framework for Juvenile Justice Reform: A South African Perspective” (2002) 42 British Journal of Criminology 496.
• Skelton, Ann, “South Africa” in Ton Liefaard and Jaap Doek (eds), Litigating the Rights of the Child: The UN Convention on the Rights of the Child in Domestic and International Jurisprudence (Springer 2015).
• Sloth-Nielsen, Julia, “Children’s Rights in the South African Courts: An Overview Since Ratification of the UN Convention on the Rights of the Child” (2001) 3(2) International Journal of Children’s Rights 137.
• Child Rights International Network (CRIN), A Comparative Analysis of Children’s Access to Justice in the Context of the UN Convention on the Rights of the Child (CRIN Report 2015).
• Nett, Jachen C and Trevor Spratt, Child Protection Systems: An International Comparison of Good Practice Examples (Technical Report, Fonds Suisse pour des projets de protection de l’enfance 2013).
• Proudlock, Paula, “South Africa’s Progress in Realising Children’s Rights: A Law Reform and Implementation Perspective” (2009) South African Child Gauge.
• Centre for Child Law, Civil Society’s Role in Child Protection (Pretoria 2017).
• UNICEF, Justice for Children in South Africa (2019).
• Save the Children South Africa, Annual Report on Child Rights Advocacy (2021).
• UNICEF South Africa, Ending Violence Against Children: Community Approaches (2018).
• Department of Social Development, Comprehensive Strategy on Child Protection in South Africa (Pretoria, DSD 2020).
• South African Law Reform Commission, Review of the Child Care Act (Discussion Paper 103, Project 110, 2002).
• South African Law Reform Commission, Project 110: Review of the Child Justice Act (2017).
• Department of Social Development, Comprehensive Legal Framework for Child Protection in South Africa (Pretoria 2019).

Case Law

• Ex parte Millsite Investment Co (Pty) Ltd 1965 (2) SA 582 (T).
• Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).
• S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC).
• Legal Aid South Africa v Magidiwana 2014 (1) SA 11 (CC).
• Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development 2013 (6) SA 574 (CC).

International Instruments

• United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3.
• United Nations Committee on the Rights of the Child, Concluding Observations: Kiribati (2012) CRC/C/KIR/CO/1.
• United Nations Committee on the Rights of the Child, Concluding Observations: Swaziland (2006) CRC/C/SWZ/CO/1.

News Reports / Official Statements

• Democratic Alliance (DA) Gauteng, ‘DA Calls for Urgent Intervention After a Nine-Year-Old Girl Was Murdered in Eldorado Park’ (News Report, DA Gauteng 2023).
• Sun, Michael, ‘Children’s safety under siege following the brutal killing of a 4-year-old Eldorado Park girl’ (Democratic Alliance Press Statement, 11 August 2025).

[1] Constitution of the Republic of South Africa, 1996; Children’s Act 38 of 2005.

[2] Shanaaz Mathews et al., Towards a More Comprehensive Understanding of Child Abuse in South Africa (Children’s Institute, UCT 2020).

[3] Michael Sun, ‘Children’s safety under siege following the brutal killing of a 4-year-old Eldorado Park girl’ (Democratic Alliance Press Statement, 11 August 2025).

[4] United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3.

[5] Children Act (Kenya) 2001; Juveniles Act (Zambia) 1956.

[6] Department of Social Development, Comprehensive Strategy on Child Protection in South Africa (Pretoria, DSD 2020).

[7] Michael Sun, ‘Children’s safety under siege following the brutal killing of a 4-year-old Eldorado Park girl’ (Democratic Alliance Press Statement, 11 August 2025).

[8] Children’s Act 38 of 2005; Constitution of the Republic of South Africa, 1996.

[9] Shanaaz Mathews et al., Towards a More Comprehensive Understanding of Child Abuse in South Africa (Children’s Institute, UCT 2020).

[10] United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3.

[11] Children Act (Kenya) 2001.

[12] Juveniles Act (Zambia) 1956.

[13] Children’s Act 38 of 2005.

[14] Constitution of the Republic of South Africa, 1996, s 28.

[15] Children’s Act 38 of 2005, s 1.

[16] Children’s Act 38 of 2005, s 9.

[17] Children’s Act 38 of 2005, s 7.

[18] Children’s Act 38 of 2005, s 150.

[19] Children’s Act 38 of 2005, ss 111–128.

[20] Children’s Act 38 of 2005, s 151.

[21] Children’s Act 38 of 2005, s 155.

[22] Children’s Act 38 of 2005, s 111–128

[23] Children’s Act 38 of 2005, s 120.

[24] South African Law Reform Commission, Review of the Child Care Act (Discussion Paper 103, Project 110, 2002).

[25] Children’s Act 38 of 2005, s 127.

[26] Children’s Act 38 of 2005, s 151.

[27] Children’s Act 38 of 2005, s 151(2).

[28] Children’s Act 38 of 2005, s 155.

[29] Children’s Act 38 of 2005, ss 42–46 (Children’s Courts and jurisdiction).

[30] Children’s Act 38 of 2005, s 45(4); Ex parte Millsite Investment Co (Pty) Ltd 1965 (2) SA 582 (T) (recognising the High Court’s role as upper guardian of all children).

[31] Children’s Act 38 of 2005, s 46(1).

[32] Children’s Act 38 of 2005, ss 23–24.

[33] Children’s Act 38 of 2005, s 50.

[34] Children’s Act 38 of 2005, s 74.

[35] Cynthia Dela Agotse, Juvenile Justice in Africa: An Assessment of Adherence to International Law on Preserving the Rights of Child Offenders (MA Thesis, University of Manitoba 2018) 45–46.

[36] Children’s Act 38 of 2005, s 55.

[37] Agotse (n 16) 63–65.

[38] United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, arts 37–40.

[39] Julia Sloth-Nielsen, ‘Children’s Rights in the South African Courts: An Overview Since Ratification of the UN Convention on the Rights of the Child’ (2001) 3(2) International Journal of Children’s Rights 137, 141.

[40] United Nations Committee on the Rights of the Child, Concluding Observations: Kiribati (2012) CRC/C/KIR/CO/1, para 42.

[41] United Nations Committee on the Rights of the Child, Concluding Observations: Swaziland (2006) CRC/C/SWZ/CO/1, paras 31–32.

[42]

[43] Constitution of the Republic of South Africa, 1996, s 28(2).

[44] Children’s Act 38 of 2005.

[45] United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3.

[46] Child Justice Act 75 of 2008, s 51.

[47] Children’s Act 38 of 2005, s 110

[48] Department of Social Development, Comprehensive Report on the Review of the Child Protection System (Pretoria 2020).

[49] Constitution of the Republic of South Africa, 1996, s 28(1)(h).

[50] Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).

[51] S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC).

[52] UNICEF, Justice for Children in South Africa (2019).

[53] Save the Children South Africa, Annual Report on Child Rights Advocacy (2021).

[54] UNICEF South Africa, Ending Violence Against Children: Community Approaches (2018).

[55] Centre for Child Law, Civil Society’s Role in Child Protection (Pretoria 2017).

[56] Legal Aid South Africa v Magidiwana 2014 (1) SA 11 (CC).

[57] Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).

[58] S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC).

[59] UNICEF, Justice for Children in South Africa (2019).

[60] Save the Children South Africa, Annual Report on Child Rights Advocacy (2021).

[61] UNICEF South Africa, Ending Violence Against Children: Community Approaches (2018).

[62] Centre for Child Law, Civil Society’s Role in Child Protection (Pretoria 2017).

[63] Legal Aid South Africa v Magidiwana 2014 (1) SA 11 (CC).