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Both the laws and the institutions affecting children are in a process of transition. There are several reasons for this state of flux: the new emphasis on children's rights that flow from CRC; the human rights provisions (including special children's rights) enshrined in the Constitution; the move away from 'western' legal notions as a result of the recognition of different cultural and religious interests in South African society; a political awareness of the needs of children in especially difficult circumstances; and the need to develop legislation which provides for changing technology, for example, in the field of reproductive techniques.
The present South African position on legal rules affecting children involves a blend of Roman- Dutch principles which, with appropriate judicial interpretation, comprise the common law body of rules generally known as the 'law of parent and child', together with numerous statutory provisions. Chief amongst the latter of these is the Child Care Act 74 of 1983, which is dealt with independently in Chapter 7. However, the relations between child and parent, and between child and state, are also covered in the numerous other statutes.(81) It has become increasingly clear that tracking statutory provisions affecting children is difficult as a result of the fragmentation of present South African statute law. A further observation is that the legal position is at times difficult to establish because of the intersection between common law and statute law. Also, some conflicts between statutory provisions have developed as a result of recent law reforms, where changes are incomplete.
An example may illustrate the difficulties associated with the current position. At present under common law, parents have a right to reasonable chastisement of their child.(82) This position derives from Roman Dutch law, and has not altered with recent Constitutional Court pronouncements on the question of judicially imposed corporal punishment. The common law position is still, too, that the parental powers in this regard may be delegated to a person acting in the parent's stead. But corporal punishment has recently been prohibited as a disciplinary measure in schools,(83) and the parental power to delegate the common law right of reasonable chastisement has, to this extent, changed through statute. The extensive amendments recently made to the regulations under the Child Care Act have prohibited corporal punishment as a form of discipline by foster parents and in children's care facilities.(84) And in 1997, consequent upon the Constitutional Court decision in S v Williams,(85) Parliament passed the Abolition of Corporal Punishment Act 33 of 1997. This legislation(86) repeals 'any law which authorises corporal punishment by a court of law, including a court of traditional leaders'. Therefore, ascertaining the present legal position on corporal punishment of children requires the study of at least three statutes, several reported court decisions,(87) and, in addition, aspects of the common law of parent and child.
6.3 Common law(88)
In this section, a distinction is drawn between rules that empower children, rules that protect children and, in general, rules affecting children.(89)
At common law, every human being is recognised as a legal subject, irrespective of age or mental or physical capabilities. This means that every person can enjoy legal rights, be subject to legal duties, and has legal capacity to do or be held responsible for different things. Thus, a child is a legal subject from birth, and can, for example, be the bearer of rights and obligations, such those related to ownership of property.
Common law divides childhood into three categories: the infant, who is below the age of 7 years and whose capacities are very limited; the pre-pubescent phase (set at 12 years for girls and 14 years for boys), which distinction still finds some echoes in our law today, and the person under the age of 21 years (the minor), whose capacities, although limited, are greater than those of the younger groups. Capacity is usually divided into the capacity to perform legal acts, the capacity to litigate, and the capacity to be held liable for wrongdoing.
As a general proposition, the rules of common law are concerned with the protection rather than the empowerment of minors. Until the age of 21 years (the present age of majority unless it is attained earlier),(90) the minor falls under the parental power of his or her parents or guardian, save for certain specific exceptions provided for in relevant statutes or developed in common law (discussed in 6.3.2 below). 'The modern South African law regards majority as the gateway to full legal capacity. The status of minority carries with it certain disabilities in the form of restrictions on private law capacities as well as various immunities and special privileges'.(91)
One example of a common law rule which can be regarded as empowering children relates to competence to testify in court; however, the child's ability to testify is not linked to a specific age limit, and depends on the child's maturity and understanding of what it means to tell the truth.
As mentioned above, common laws rules concerning the status of the infant and the minor are chiefly aimed at the protection of children by reason of immaturity. The common law rules are based on motives of paternalism in order to protect minors against themselves.(92)
Therefore, a child under the age of seven years cannot conclude any juristic acts, and a guardian must act for and on behalf of the infant. Such child also cannot be held responsible for criminal or delictual acts.
At the age of seven, a person ceases to be an infant and acquires limited capacity to act. At this age a child can be held liable for criminal offences or delicts, although a rebuttable presumption of incapacity applies to a child between the ages of seven and fourteen years. The rebuttable presumption of incapacity for criminal or delictual acts falls away at 14 years(93) for both girls and boys. A minor under the age of 21 years lacks the capacity to undertake contractual obligations or to sue or be sued on his or her own, and will ordinarily be assisted by a parent or legal guardian in this regard.
At present, a man who has sexual intercourse with a girl below the age of 12 years can be convicted of rape, as below this age, girls are legally incompetent to consent. This rule dates from Roman times.(94)
It has been argued that it would better accord with social reality if the age of majority were reduced to 18 years, and that the paternalistic approach of common law is over inclusive, as it sweeps in many minors who are in fact possessed of the necessary competence to make assessments of what qualifies as their best interests.(95)
From the discussion thus far, it is clear that other project committees of the South African Law Commission are also currently dealing with legislative reform in specific areas affecting children, the project committee on juvenile justice and that on sexual offences against children in particular. The way forward with regard to the process of integrating the different efforts is touched on in Chapter 11, and no questions are therefore raised for discussion here in regard to issues which overlap with those investigations.
Question 21: Should the age of transition from minority to majority remain at 21 years for the purposes of private law capacities, or should it be lowered to 18 years in accordance with the Constitution and CRC? If yes, should this be for all purposes, or should there be certain exceptions, where parental assistance is still required until the age of 21 years?
Only parental power, the best interests standard and children's status will here be addressed in detail. However, the common laws rules of evidence, which can affect the weight given to children's testimony (particularly in sexual abuse cases), may be relevant to this investigation. So for example, the cautionary rule of evidence(96) applicable to child witnesses,(97) derived from common law, has been called into question by experts, who have argued this rule has a discriminatory effect against children.(98)
Question 22: Should the investigation include a review of the common law cautionary rule relating to child witnesses, or any other aspect of children's testimony?
The most significant common law rule pertaining to children is arguably the concept of parental power (also known as parental authority) which is the 'collective term for the sum total of rights and obligations which a parent enjoys in relation to his child, the child's estate and administration thereof, and includes assisting the child in legal proceedings'.(99) It encompasses the power of reasonable chastisement, as mentioned above, as well as a host of matters pertaining to the child's day to day life, including control over a child's social interactions. Access,(100) custody and guardianship (in the narrow sense) are all separate incidents of parental power. It has been noted that the Constitution does not protect a right on the part of parents to family life, as the applicable section provides for the child's right to 'family care or parental care', which 'in no way entrenches the parental power as a constitutional right on the part of parents'.(101)
Generally, parental authority is obtained automatically, upon the birth of a child, although parental power is also conferred by adoption. It terminates when the child becomes a major, or when a parent is deprived of parental authority by order of court. The High Court, which at common law is the 'upper guardian of all minors', can overrule any decision taken by parents in consequence of their parental authority if this is in the best interests of the child. In addition, sometimes the assistance of the parent or guardian is regarded as insufficient protection for the child, and the High Court, as upper guardian, is then empowered to grant consent.(102)
Professor June Sinclair, amongst other commentators, has argued that the idea of parental power is out of step in a modern era characterised by children's rights and parental responsibilities, and that the South African law in this regard is still in need of urgent reform.(103) It should more properly be described as an office of trust, concerned more with duties than powers.(104)
Question 23: Should future child legislation amend the common law notion of parental power, and if so, how?
With the impending advent of the Family Court as an institution for the furtherance of the interests of children and families, and the notion that all child related judicial issues be centred in this court or the attached children's court, it may be necessary to amend the rules, both statutory and those derived from common law, so as to transfer the functions of the High Court regarding children to this forum.
Question 24: Should the High Court remain the upper guardian of all minors? Should the functions presently exercised by the High Court not be transferred to the envisaged new Family Court or to another forum, such as the children's court?
The existence of past legal discrimination in law against children born out of wedlock is by now well known, as illegitimacy was at common law an important factor affecting status, especially vis a vis the child's father and third parties. However, the common law rules regarding the differing status of children born in and out of wedlock have been and are increasingly being altered by legislation.(105) Thus the fact that a child is born out of wedlock is no longer of consequence when it comes to determining domicile,(106) capacity to inherit on intestacy(107) or relationship to another for the purposes of interpretation of a will.(108)
At common law, the mother of a child born out of wedlock is the guardian of that child(109) and custody too vests in her. Although the father has no inherent right of guardianship, access or custody, the natural father does incur liability for the maintenance of the child (but this may not be reciprocal: it is arguable that the child born out of wedlock has no duty of support vis a vis its natural father).
Legislation(110) on the powers of natural fathers of children born out of wedlock was passed in late 1997, and regulates the right of the father to apply to court for rights of guardianship, custody and access in regard to his child. There are, however, arguments to the effect that this legislation does not go far enough in eliminating differences in treatment of children born in or out of wedlock, as it still displays undue maternal preference. It is unclear whether further legislative endeavours in this area are warranted or necessary.
Question 25: Should this investigation revisit the position of fathers of children born out of wedlock, and if so, should this be general, or confined to specific issues?
Other vestiges of the common law distinction between children born in and out of wedlock may remain, particularly in regard to common law rules relating to the reciprocal duty of support by and of children born out of wedlock in relation to blood relations of their father. It has been suggested that these residual provisions of common law which continue to provide for differential treatment on the basis of birth status violate the Constitution(111) and CRC.
Question 26: To the extent that there is still differentiation in law between children born in and out of wedlock, should this be addressed by the new children's statute, either in general, or with respect to particular issues?
That the best interests of the child should be the determining factor in decisions relating to guardianship, access and custody of children is well established in our private law, and the rule has also been entrenched in the Constitution. It forms one of the four pillars of CRC too. In the interim Constitution, the wording of the clause implied that the paramountcy of the best interest standard was limited to proceedings regulated by the then section 30,(112) but the 1996 Constitution makes it clear that the field of application of the best interests standard is not restricted to proceedings under the children's rights clause in section 28. Several question are raised in Chapters 8 and 9 about the intersection between the best interest standard and customary and religious law. Many of the problems highlighted there are also features of South African common law and judicial practice, in particular, the concern that the standard is notoriously vague and indeterminate,(113) and also subject to individual interpretation in specific situations and with reference to particular cultural and religious settings.
Question 27: Should guidelines be provided to direct decision makers in the implementation of the constitutional injunction that the best interest of the child is the paramount consideration in all matters affecting children, or is the incorporation of key principles (as outlined in Chapters 3 and 10) sufficient?
Because legislation governing the rights of children, duties and powers in respect of children, their care and protection, their education, incarceration, health and welfare is spread through a large number of statutes, administration and implementation of child law is shared by a number of Ministries and Departments.(114) The possible inter-sectoral nature of a children's statute, and the questions this may pose in regard to responsibility for implementation of different aspects of the legislation is raised in Chapter 11 below. Comparable models and structures for overseeing child law and its implementation through different Ministries or Departments in other jurisdictions are referred to in Chapter 10 below.
In the overview of legislation below, necessarily truncated for the purposes of this Issue Paper, attention has been paid especially to areas and issues which are of concern to the project committee, or which link to questions already brought to the fore in the prior part of this Chapter.
There are many examples of specific legislative enactments empowering children to perform or undertake specific acts, despite the general common law stance that they should, by reason of their immaturity, be protected, especially as far as commercial dealings (where obligations might be incurred) are concerned.(115) Interestingly, many examples where lower ages than the normal age of majority have been set by legislation, grant to a minor the ability to conduct what can be described as actions which imply entry into the commercial world.
The above is illustrated by the following examples: A person of 16 years or older can make a will(116) while the minimum age for being a witness to a will is 14 years.(117) At 16 years, a minor can open a building society or bank account.(118) Similarly, a person of 16 may apply for a license to own a firearm.(119)
In 1985, in its Report on the Investigation into the Advancement of the Age of Majority (Project 43), the South African Law Commission concluded that there was no real need at that stage for the age of majority to be lowered. In view of the definition of child in both the Constitution and CRC, and bearing in mind the changed political, social and economic circumstances in South Africa, it is arguable that this conclusion needs to be revisited.(120)
Question 28: How would commerce be affected if the age of majority for all purposes were to be lowered to eighteen years? Do any further age limits require attention during this investigation?(121)
Question 29: Should the current legislative provisions governing matters such as the ownership of firearms, the sale of solvents, liquor and tobacco to children, and related matters be revisited in order to better protect children?
The Choice on Termination of Pregnancy Act 92 of 1996 aims to promote 'reproductive rights and ... freedom of choice' of women, and provides for termination of pregnancy during the first 12 weeks upon the woman's request. It also provides for termination up to the 20th week on certain grounds, such as where the pregnancy resulted from rape or incest, or where the pregnancy would significantly affect the social or economic circumstances of the woman concerned. Even after the 20th week of pregnancy, legal termination is possible where there is severe malformation of or a risk of injury to the foetus, or where the woman's life is in danger. In most cases, no consent is required other than the informed consent of the woman, even if she is still a minor (of whatever age) and even if her parents are opposed to the abortion.
The generally applicable rules on the topic of consent to medical treatment are dealt with in Chapter 7 below. The rules for termination of pregnancy (often involving a surgical procedure) are, however, now different from those generally applicable to medical and surgical treatment.
The Marriage Act 25 of 1961 provides that minors under the age of 21 years require consent of both parents or of a guardian in order to marry. If this is not possible, the consent can be obtained from the local commissioner of child welfare. If any of the parties mentioned refuse consent, the minor will have apply to the High Court for consent. The Act further provides that if a boy below the age of 18 wants to marry, or a girl below the age of 15, the consent of the Minister of Home Affairs is required (except if a High Court has already consented). Without this consent, the marriage is invalid. No girl below the age of 12 years or boy below the age of 14 years may marry. If a person below 21 years does marry without the necessary consent the marriage is not necessarily invalid, but it can be dissolved by the High Court if this is in the interests of the minor concerned. A child below 21 years who marries becomes a major for all legal purposes.
Question 30: Is it appropriate to re-examine the age at which persons can marry without consent if the age of majority is lowered from 21 to 18 years? Are there any other age thresholds in regard to marriage which should be examined?
Divorce affects children legally in that decisions are made about guardianship, custody, access and maintenance. At present, attempts are made to protect the interests of children in divorce proceedings through the involvement of the Office of the Family Advocate and in the provision in the Divorce Act 70 of 1979(122) to the effect that the divorce decree should not be made final unless the court is satisfied that adequate provisions have been made for the welfare of the minor or dependent children of the marriage. Generally, decisions are made taking into account the 'best interests of the child'. Usually both parents will keep guardianship, but custody is still frequently awarded to the mother, especially where young children are involved. In rare cases, courts have awarded joint custody of children to the divorcing parents.
As will be discussed below in Chapters 7 and 10 below, the international trend, in an attempt to move away from a 'winner takes all' situation between divorcing parents, is to replace notions of guardianship, custody and access with more flexible forms of order: thus 'contact orders', 'residence orders' and such like have changed not only the provisions of divorce law, but have profoundly altered the concepts underpinning the law of parent and child. Thus while a parent 'has custody over a child', a residence order simply determines where the child resides. And, while a parent has 'a right of access to a child', a contact order spells out whom the childhas contact with. The introduction of similar reforms in relation to children in the child and youth care system is presaged by the IMC report which envisages replacing terms such as 'institutional care' with the more neutral 'residential' care.
In accordance with article 3 of CRC, provision has also been made in recent legislation in other countries for taking the child's views into consideration upon the divorce of his or her parents.(123)In line with the recommendations of the IMC relating to children placed in alternative care,(124)it should perhaps be considered whether divorcing parents should be legally obliged to formulate a proper plan for the welfare and well being of their children after divorce.
Question 31: To what extent should the orders available upon divorce in respect of children be modernised? Is the appropriate place to do this a children's statute, or should it be done in new divorce legislation?
Question 32: What are appropriate terms for South Africa for different aspects of what are now called 'guardianship', 'custody' and 'access'?
Question 33: Should divorcing parents be legally obliged to formulate a proper plan for the welfare / well-being of their children after divorce, and, if so, should this obligation be imposed on parents in terms of a children's statute?
Question 34: What is the best way of providing for the views of children themselves to be taken properly into consideration when orders concerning them are made upon the divorce of their parents?
At present both the common law and the Sexual Offences Act 23 of 1957 affect the related questions of age and sexual offending. A review of both is presented in the South African Law Commission Issue Paper 10 on Sexual Offences (Project 107). The way forward with regard to the process of integrating matters already addressed by the project committee on Sexual Offences against Children will be discussed in Chapter 11. In summary, however, the following observations are pertinent to this review: there are gaps, flaws and inconsistencies in the relevant legislation, as well as a discrepancy between the age of consent for boys (19) and girls (16); questions are raised about rules of evidence, which are specific to sexual abuse cases, and to children's evidence in such cases.
In terms of the Births and Deaths Registration Act 51 of 1992, notice of the child's birth must be given to an official in the Department of Home Affairs within thirty days of a child's birth. The child must have a name and surname in order to be registered. If one of the parents is not able to register the child, they can request someone else to do it for them, or the person in charge of the child can do this. (This would apply to people who have in their care babies who have been abandoned). There have been numerous practical problems with registration of births in the past due to the fact that many children's births were not, and are still not, registered by parents. Home Affairs offices are sometimes far away from where people live, and people are also unaware of the need to register the births of their children.
Question 35: In view of the constitutional right of a child to a name and nationality from birth, should provisions governing the registration of births be included in a comprehensive children's code?
A child born to a man and woman who were married at the time of conception, birth, or any time in between, enjoys legitimate status under the common law. As regards legislation, the Children's Status Act 82 of 1987 provides(125) for the legitimate status of a child where that child was conceived as a result of artificial insemination with the gametes of a third party, provided that both husband and wife have consented to the artificial insemination.(126) Surrogacy arrangements are not adequately covered by the provisions of the Act, and the specific problems arising from these arrangements, which were the subject of a Law Commission investigation in 1993, are currently being addressed by a Parliamentary portfolio committee.(127)
Question 36: Should a children's statute include reference to the consequences and regulation of alternative reproductive techniques and surrogacy arrangements?
Domicile is regulated by the Domicile Act 3 of 1992, which has simplified the law and removed major objectionable features of the common law. In particular, minors over the age of 18 may acquire a domicile of choice independently of their parents, and the place with which the child is most closely connected (usually the home of the parent or parents with whom the child lives) is now its domicile.(128)
In terms of the common law, although the parental power over legitimate minor children was shared by both parents, the father's authority was superior to that of the mother, the mother being confined to participation with the father in the custody of the child's person and the care and control of the child's daily life. In the event of a difference of opinion between the parents, the father's word was decisive. This position was altered by the Guardianship Act 192 of 1993, in terms of which parents of a child born in wedlock now have equal guardianship of the child, and are entitled to exercise their rights and powers and carry out their duties arising from guardianship independently of each other.(129) This equal, but independent, guardianship is subject to the requirement that the consent of both parents be obtained for certain specified acts, including the marriage of the child, the adoption of the child by third party, the removal of the child from South Africa by one of the parents or a third party and the alienation of immovable property or any right to immovable property belonging to the child.(130)
Question 37: To what extent should the existing provisions of the Guardianship Act be incorporated in a general children's statute?
Question 38: Should there be some duty on parents to consult each other before taking decisions materially affecting the child's life, such as those relating to education, religious upbringing, elective surgery and the like?
Question 39: How best can the child's right to participate in decisions affecting his or her welfare be grafted onto the present law of guardianship?
The Schools Act 84 of 1996 is a comprehensive enactment dealing with compulsory school education from 7 years up to age 15 years, and provides for the norms and standards of the formal school system. The duty to educate a child is a common law responsibility of a parent, which is re-iterated in section 3 of the Act.
Question 40: Bearing in mind the comprehensive nature of the Schools Act and other recent legislation in this area, to what extent, if any, should matters relating to school education, be covered in a children's statute?
Question 41: Are there residual matters (such as safety in schools, or minimum standards) that could or should be addressed?(131)
The present position with respect to day care and ECD is discussed in Chapter 4.
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