THE IMPACT OF SOUTH AFRICAN LAW IN ENSURING BEST INTEREST ANDWELL BEING OF A CHILD

Everyday children face unseen battles. Children are experiencing lot of challenges in the communities we are living in, such as parental divorce, this negatively affects the child’s well-being more than the two adults who are initiating the divorce, as the child is used to live with both of his parents and receiving ultimate support. Also, the age difference between adults and children do make their opinions or views not to be recognized and such act is supported with a statement that “they are young so they know nothing” but when they did something wrong, they are held liable for their actions regardless of their age. So, this article will demonstrate how South African law goes with fixing these issues, also what or who is regarded as a child by South African law

Definition of a child and best interest of a child

Chapter 1 of Children’s Act 38 of 2005 and South African Constitution section 28(3) defines a child as any person who is under the age of 18. Chapter 2 of Children’s Act 38 of 2005 s9 and s28(2) of the South African constitution further states that the best interest of a child in all matters is paramount important, these interests include care, protection also well-being of a child. While section 28(1) of the constitution lists the rights of children. Children’s Act 38 of 2005 s7 (1) (a-n), explain what factors the court should consider in order to serve best interest of a child, it states that first the court must consider the nature of relationship between the child and a parent, and compare it to the one of child and any other care-giver or person relevant to the circumstance. Court must consider the attitude of a parent and of the other guardian in matter, towards the child and how they exercise their parental responsibilities and rights in respect of a child this includes also the expenses of a child’ education, healthcare. Capacity of the person to satisfy the needs of a child this also mean the physical and emotional security also the ability of person to handle child development changes such as age, certain stages of growing up, background, gender and more.

How does law of persons protect children from all these challenges?

Law of persons set two (2) categories of children based to their age. These categories play a crucial role in evaluating their mental capacity and determining whether they should be held liable for their actions or crimes. These types of categories are infants and minors.

Infants: Infants are all the children who are under the age of 7, and there is irrebuttable presumption that they are doli incapax which means they lack the capacity to differentiate between what is right, and wrong therefore they cannot be held liable for their actions. Because of this presumption South African law believes they have no capacity to enter into a legal agreement without the assistance of a guardian, and such agreement must be wholly to benefit the child and carry no duties, also they don’t have the legal capacity to stand in a court trial as they are irrebuttable presumed that they don’t have locus standi in judicio which means a third party cannot bring a valid claim against them in a court of law. So South African law of Persons state that children under the age of 7 cannot be held accountable for their action, as they lack knowledge. But the question is what about those who are 7-years and older?

Minors: minors are children above 7 years old but still below the age of 18, and for this category there is a rebuttable presumption that they are culpae incapax meaning they lack capacity to be at fault for their actions, whoever believing that they knew exactly what they were doing when they were causing delict, then the burden of proof is within that person. This burden of proof changes when a child reach puberty stage which is 12 years for girls and 14 years for boys based to common law, the burden of proof now will change to the minor to prove that he didn’t understand the consequences of his actions. But this age difference between 2 genders can’t be entirely accepted as it is a disadvantage for girls not to be seen the same with boys while they are at the same age this violates their right of equality that is listed in section 9 of South African Constitution. Because of this, Child Justice Act list the age of terminating for this presumption at the age of 14 for both genders, which means after 14 years, children can be held at fault and accountable for their actions, but it is for them to prove their lack of knowledge and reason not to be held liable for their actions. But here is the twist, when a guardian of a child saw the possibility of harm that can be caused by her child, then the guardian of a child will be liable for all damages caused by the child, for example if the guardian of a child allowed her child to play with a ball in a field that is close to houses of other people and foresee the possibility of breaking windows then the court will hold guardian liable for damages, we can refer such transferring of liability to the case of Wessels v Pretorius [2007] SCA 108 (RSA), the facts of this case are that the appellant Stephanus Wessels allowed his son Albert Wessels who was 16 years to drive his vehicle(bakkie) without a back canopy and without a license , and in the vehicle they were 4 passengers sitting at the back of the bakkie when Albert intentionally and without any valid reason performed a handbrake turn, which excites the youth when driving and for this act Benjamin who was not holding on the roll bars nor even expecting this action, was thrown off the vehicle leading him to suffer injuries. The court judged that the appellant did not act as a reasonable father and was negligent. Court further mentioned that a reasonable father would have foreseen the risks of giving a vehicle to an unlicensed person especially a teenager, so the father of the teenager was liable for negligence and damages incurred by Benjamin.

So, the law of persons is there to guide justice in determining whether a child can be held liable for his actions or not also what measures should be taken in determining the child’s liability. The implementation of this law benefitted children from being unfairly judged, because most people especially elders, they feel like they have power over children and they can punish them in anyway of their choice for their actions. But law of Persons now protects children and reveal how their age can be found legally binding in case of determining their age and capacity to act, the importance of age in legal matters is explained clearly in the book of ADRIAAN ANDERSON et al. EVERYONE’S GUIDE TO SOUTH AFRICAN LAW 101-03, MARTHA EVANS eds., (4^th ed. 2016).

Family law and wellbeing of a child

Well-being of child can also be affected by family issues such as divorce or dispute of who should maintain a child including custody etc, but family law of South Africa is present to look on all those issues that can have a negative impact to a child. Firstly, every child has a right to basic necessities such as housing, food, clothing and medical and educational expenses. In reality we living in life where most woman are facing problems of raising a child in the absence of a father, and this is triggered by varies reasons such as the father denying paternity or after divorce one spouse stops supporting. In the case of paternity dispute family law provides a rebuttable presumption that if a man had a sexual relationship with a woman at the time of the conception of a child, then he is deemed to be the father. However, he may invalidate that presumption by proving to the court that he is not the father in a way of doing paternity test. But there is still a question in dispute on who has the right to consent for a paternity test. Based to Seetal v Pravitha and Another NO 1983 (3) SA 827 (D) at 862 – 4; in this case the applicant who is the husband of the first respondent sued for divorce on the grounds that the first responded committed adultery, but there is no valid evidence for such suspicion except of physical features he spotted in his 4 years old son which made him believe that the child was not his. He requested the court to grant him a right to run paternity tests but the court refused that right stating that there is are no great doubts about the child’s paternity which needs in his interest to be resolved and the grounds that the applicant was relying upon were deemed weaker, so granting such right was not going to benefit the child and the case was dismissed. This case reveals that the court as upper guardian of a child with valid proof and in the best interest of a child a court can grant the consent or allow for a paternity test regardless the refusal of the spouse. On other hand in the case of S v L 1992 (3) SA 713 (E) where the appellant was the mother of a 10 years old child , L, of whom she alleged the responded to be the father. The responded has been maintaining the child from birth but never admitted that the child was his, he admitted he had intercourse with the appellant at the time the child was conceived but contended that he was not the only one to do so. The appellant in 1988 applied for the increase in the amount of maintenance to be paid by the responded. The respondent opposed such application requesting for paternity test in order to establish whether he is the father of the child and the appellant refused such test. The responded applied to the supreme court for an order compelling both the applicant and a child to submit for the paternity test the order was granted, but the appellant appealed against this order to the full bench. Later on, the supreme court ruled that the court does not, as the upper guardian of minors, have the power to interfere with a decision of a guardian that a child should not undergo blood tests. It held that the power of upper guardianship related only to questions of custody, and not interference with the day-to-day parental power and control. While we don’t have any legislation governing paternity test in the civil matter but in my own opinion I think the court has the power to consent or refuse the blood test as long as it’s decision will benefit the child, the court cannot consent to the blood test just to prove to anyone of his paternity, as this may lead to a discrimination of a child if it is proven that the child was born out of adultery and such discrimination can affect well being of a child negatively some communities may put the child in isolation, also if the court grants such blood tests order only to prove paternity then the court would not be serving in the interest of a child but violating the constitutional right of individuals regarding privacy.

With regards to this issue of maintaining a child, family law provides who must maintain a child and how to issue a maintenance order, according to family law both parents whether married or not they have a duty to maintain a child also if parents cannot maintain a child, then the grandparents must maintain the child. Maintaining a child can apply even to step parents even though step parents do not automatically have legal duty to maintain a child but with their consent to take responsibility as parents of a child then they can have the legal duty to maintain.

what if now the parents decide to divorce?

As divorce is regarded as one of the issues concerning a child, married parents when they decide to divorce the divorce court cannot not grant such divorce without setting how the children will be taken care off, by drafting parenting plan. In case after divorce one of the parents fails to support the child to the point that another spouse wants to claim for child’s maintenance then she can go to a magistrate court with her proof of income, whether self employed or employed by another person, if you re not employed then bring your bank statement, along with proof of your expenses and of the children this can be rent receipts, electric bills, medical fees, school fees etc. Ask for maintenance officer he will ask questions to determine the validity of your case, and follow the step to issue maintenance order, the steps include calling both parties in dispute to arrange settlement, witnesses may be called too, to present their evidence. After all these have been gathered then the magistrate will put the matter in balance probation in respect to a child’s best interest, and issue the maintenance order, which is legally binding and failing to adhere to it may result to a fine or imprisonment of up to a year.

Family law is the umbrella that protects also children, and ensure that in the presence of any family disputes they don’t end up not being taken care of. There government of South Africa made it possible that every child is well maintained by making use of social workers and Family and Marriage Association of South Africa known as FAMSA. FAMSA is a non-profit organization that is available to sort family issues it offers free social workers. Children who are facing challenges can make use of it, and if this organization is convinced that the child is not receiving adequate care from parents, then they can apply to the children’s court for a different guardian most of the court will consider social workers and other organizations that can take care of a child.

Criminal law and children in conflict

Children who are in conflict with law are not punished like adults, Child Justice Act 75 2008 of South Africa (CJA)make provisions on how children in conflict can be protected. CJA look on how a child can be punished not harshly but still a way that can serve justice also to the community. Child Justice Act state that if a child is in conflict with law the court will have to determine if the offence, he committed is worthy serious punishment and does a child possess any harm to the community. If the court saw that the offence is not that serious then it may refer a child, to child development programs or social workers to deal with the child, but if the child possess threat to the community he may need to be kept in custody, but the court also determine a proper structure for a child in custody CJA mentions that the child can not be kept in custody with people who are 18 years and older. And the court must prioritize the safety of a child in custody. A child under 10 years cannot witness in court, but a child older than that can take part in children’s court this means even the structure of a court must not be in a way that can scare him, children who are called in court are being handled by professional people who are trained to deal with children to serve justice. A child is entitled to free representative in a criminal matter. Child Justice Act s7 state that children under the age of 12 they lack criminal capacity therefore they cannot be prosecuted but they have to be handled in terms of section 9 which state that be release back to parents. And for those who are 12 years and older but haven’t reached 14 then the presumption of lacking criminal capacity is running to them but the court can prove otherwise that the child had the ability to understand what is right and wrong based to their educational level.

Conclusion

South African law has gone through reasonable steps to protect children in all categories of law and try its best to help them in all types of needs they may require and ensuring their safety also their well being as children. Children’s Act also protects children in all type of harms whether physical or emotional, stating that a person possessing threat to a child will encounter serious criminal charges. So, these umbrellas of law and legislations doesn’t follow community norms that may violate children’s rights but they enforce good ethics that may align with the traditions of communities if they are reasonable and beneficial for a child.

Reference(S):

1. SOUTH AFRICAN CONSTITUTION OF 1996
2. CHILDREN’S ACT 38 OF 2005 [RSA]
3. CHILD JUSTICE ACT 75 2008 [RSA]
4. ADRIAAN ANDERSON ET AL. EVERYONE’S GUIDE TO SOUTH AFRICAN LAW 101-03, MARTHA EVANS EDS., (4^TH 2016).
5. MG KARELS ET AL. CHILD OFFENDERS IN SOUTH AFRICAN CRIMINAL JUSTICE CONCEPTS AND PROCESS, JUTA & CO (PTY)LTD (1^ST 2015)
6. DSP CRONJE & J HEATON CASEBOOK ON LAW OF PERSON AND FAMILY LAW 59-63; 68 & 80, (2^nd 1994)
7. SEETAL V PRAVITHA AND ANOTHER NO 1983 (3) SA 827(D) AT 862 – 4;
8. S V L 1992 (3) SA 713(E) 
9. WESSELS V PRETORIUS [2007] SCA 108 (RSA)