Faculty of Law
Department of Private Law
Selected Highlights from Research Findings
Prof Trynie Davel and her colleagues at the Centre for Child Law have also conducted research aimed at establishing the ambit of section 28(1)(h) of the Constitution of South Africa.
This section of the Constitution states that a child has the right to legal representation in civil proceedings affecting him or her if substantial injustice would otherwise result. Furthermore, the legal practitioner has to be assigned to the child by the state at state expense.
Although this provision has been on the statute books for nearly a decade, its nature and content is still clouded with uncertainty. Some of the main issues that need to be addressed include the correct procedure for the assignment of a legal representative and the question of which body should make the assignment (for instance, whether it is the State Attorney or the Legal Aid Board).
The Centre for Child Law has taken on a number of cases aimed at establishing the content of children’s constitutionally defined right to legal representation. In one case, the Centre approached the Legal Aid Board and the State Attorney on behalf of two sisters (aged twelve and thirteen) to request the assignment of a legal representative.
The State Attorney agreed to assign the senior counsel identified by the Centre. Although this application was successful, it unfortunately did not establish a viable model for the future, since the State Attorney – unlike the Legal Aid Board – is not readily accessible to the public.
The Centre subsequently had the opportunity to pursue the issue further. In the unreported case of G v S, it was asked to assist an eleven-year-old boy who had been placed by an order of the High Court in the custody of his father, but who wanted to live with his mother. In this instance the Legal Aid Board stepped in, and thus established an accessible route for the public at large
Contact person: Prof CJ Davel.
In her recently published LLD thesis, Dr Ann Skelton of the Centre for Child Law has explored the origins, theory and practice of Restorative Justice in South Africa. Her study makes special reference to the relevance and implications of restorative justice to Child Justice.
Restorative justice is best understood by contrasting it with current standard criminal justice. Whereas the latter proceeds from the questions “Who has committed the crime? How should the state punish the offender?” the former gives pride of place to the questions “Who has been harmed? What are the needs of that person?”
A restorative justice process allows the victim to voluntarily come into contact with the offender, to challenge the offender and to explain his or her needs. This encounter is mediated by a skilled facilitator.
The outcome of the process is an agreement that the offender will put right the wrong directly to the victim. Skelton notes that restorative justice resonates powerfully with African traditional systems and the philosophy of ubuntu.
Skelton goes on to argue that child justice systems across the world have benefited from the restorative justice movement, as it has proved to be a counter-balance to a rising tide of popular punitiveness against young offenders.
This trend can also be discerned in South Africa: the Child Justice Bill has a strong restorative justice orientation – although this has been eroded somewhat by increased retributiveness arising from public fears about crime.
Skelton predicts that the value-base of restorative justice will be an important instrument for the future interpretation of the legislation and for the development of a restorative justice jurisprudence.
The influential nature of Skelton’s work is evidenced by the fact that her thesis was cited in the judgement following a case that appeared before the Constitutional Court in 2006
Contact person: Dr AM Skelton.
Prof Trynie Davel, director of the University’s Centre for Child Law, has investigated the plight of adult survivors of childhood sexual abuse in South Africa, and found that the law and legal processes potentially offer powerful tools for promoting the constitutionally enshrined fundamental rights of women and children.
Child sexual abuse has taken on horrific proportions in South Africa. In 2001, for instance, an estimated 58 children were raped daily in this country. This trend shows no sign of slacking, and has become a major social and judicial concern.
Our government has ratified numerous far-reaching international instruments aimed at protecting women’s and children’s rights, and we pride ourselves on a constitutional dispensation that safeguards human dignity. In reality, however, these rights fail to make a difference in the lives of thousands of South Africans.
While this is partly because of inadequate law enforcement, some blame must also be laid at the feet of the criminal justice system.
A case in point is the matter of Van Zyl v Hoogenhout. Esmé van Zyl is an adult survivor of childhood sexual abuse: between the ages of six and fourteen, she was repeatedly subjected to sexual abuse, sodomy and rape at the hands of her uncle. This ordeal culminated in pregnancy and an abortion in 1965.
More than thirty years later, Van Zyl instituted a claim for damages caused by the sexual assaults to which she had been subjected as a child. However, her case was dismissed by the High Court in view of the 1969 Prescription Act, which states that a claim for damages must be submitted within three years from the date on which the debt became due.
Her case was then taken to the Supreme Court of Appeal by the Women’s Legal Centre in Cape Town. Their appeal raised the argument that the Prescription Act must be in accordance with the requirements of section 39(2) of the Constitution, which obliges courts to promote the spirit, purport and objects of the Bill of Rights when interpreting legislation.
The appeal was successful: the order of the Court a quo was set aside, and the plaintiff was awarded R200 000 for infringement upon her personality rights (general damages) and R133 300 for future medical costs (including psychotherapy, psychiatric evaluations and anti-depressant medication).
This case is an example of impact litigation – in other words, litigation that aims to address some deficiency in legislation by creating a precedent for future court cases. Davel asserts that impact litigation represents a powerful weapon for reforming society.
She also argues that, although the case of Van Zyl v Hoogenhout is a groundbreaking victory for women and children’s rights in South Africa, more work remains to be done in terms of exploring avenues for the provision of appropriate compensation
Contact person: Prof CJ Davel.
Intercountry adoption has become a contentious issue worldwide, and has been the subject of research conducted by Anne Louw of the Department of Private Law. Louw points out that the intercountry adoption process is particularly perilous when foreigners apply to adopt children from countries that are not signatories to the Hague Convention on Intercountry Adoption – or when a country has become a member state to the Convention, but has not incorporated it into domestic law. South Africa falls in this second category.
In such cases, the Convention is unenforceable and the adoption procedure is not regulated by the international guidelines embodied in the Convention. In South Africa, the problem is exacerbated by the fact that foreigners may approach the High Court for guardianship and custody of a South African child with the aim of adopting the child in their country of origin.
Although not illegal, this alternative adoption route has raised concerns insofar as it removes the child from the protective ambit of the adoption procedure currently prescribed in terms of the Child Care Act 74 of 1983.
The South African courts have questioned the advisability of allowing a child who has not been orphaned to leave the country for the purpose of being adopted elsewhere, since intercountry adoption should only be considered as a last option.
Louw argues that the current uncertainty and vulnerability of children with regard to intercountry adoption will persist until the Children's Act 38 of 2005 comes into operation. This Act incorporates the Hague Convention into South African law; thus, it will effectively close the existing loopholes and provide a measure of protection for children who become the subject of intercountry adoption proceedings.
Until then, an application for guardianship by a non-citizen should, as now indicated by the High Court in De Gree and Another v Webb and Another, be channelled through the Children's Court and subjected to the same scrutiny as an intracountry adoption
Contact person: Ms AS Louw.
Section 28(1)(g) of the Constitution of South Africa states that imprisonment of child offenders must always be a measure of last resort, and then for the shortest appropriate period of time.
Carina du Toit of the Centre for Child Law has conducted a study to determine how many persons currently serving a sentence of life imprisonment were below the age of eighteen when they committed the offence. She also investigated the legality of such a sentence in light of the Constitution and international law.
During the research, interviews were conducted with 55 prisoners suspected to have been below the age of 18 when they committed the crime. Of these, 32 were found to have been. An analysis of South African sentencing practices revealed that legislation enacted in 1997 created a sentence of mandatory life imprisonment for certain serious violent crimes.
This minimum sentence legislation states that, although it does not apply to persons below the age of 16, a judge may impose it on a 16- or 17 year-old – provided that there are demonstrable reasons for doing so.
This legislation led to widespread confusion about whether minimum sentences automatically apply to children who were 16 or 17 when they committed the crime. The question was finally resolved in 2004 by the Supreme Court of Appeal, where it was decided that minimum sentences – specifically life imprisonment – do not automatically apply to children of 16 or 17.
Most of the persons interviewed during Du Toit’s research were found to have been sentenced between 1997 (when minimum sentences were introduced) and 2004. She concludes that these young people have been wrongfully sentenced to life imprisonment, and that it is in the interest of justice that their sentences be taken on appeal
Contact person: Me C Du Toit.
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