Faculty of Law
Department of Private Law
Selected Highlights from Research Findings
During May 2008, the Constitutional Court was asked to consider whether all information arising from a divorce may be disclosed to the public by the media. The dispute arose from a section in the Divorce Act, Act 70 of 1979, which stated that the names of the parties to a divorce may be published, but no other facts arising from the divorce. Johncom Media Ltd successfully argued that this prohibition on publication unreasonably and unjustifiably infringed on the right to freedom of expression. At the Constitutional Court stage, the Centre for Child Law represented the Media Monitoring Project as amicus curiae. It was accepted that the prohibition on publication in the Divorce Act was overbroad and infringed on the right to freedom of expression. Newspapers and other media fulfil an essential function in providing the public with information on how the legal system works, especially on recent developments in the law. It is also in the public interest that the law is seen to be done. The research team’s concern was that a complete removal of the offending prohibition on publication would leave children in a vulnerable situation. Divorce papers frequently include in-depth psychological assessments with extremely personal information about the children and details on alleged sexual or physical abuse. If the offending section is removed without replacing it with some other safeguards, information that may be extremely embarrassing for children may come to light and will be in the public domain. The team conducted extensive comparative research to determine how other countries have dealt with this problem. They also studied the international law in this field. Children’s right to privacy in the media is recognised internationally in the guidelines on reporting on children of both the International Federation of Journalists and the United Nations Children’s Fund (Unicef). The guidelines state that children have an absolute right to privacy. Comparative research showed that there is an established practice in various democratic jurisdictions to place a restriction on the publication of any information that may identify a child who may be affected by or is the subject of court proceedings, including New Zealand, Australia, Canada and the United Kingdom. Other information that may come to light during court matters may be published as long as the child concerned cannot be identified by the information. When a child is found to be in need of care and is taken into state care, all proceedings in respect of that child is confidential and the child’s privacy is protected by legislation. A child’s identity and privacy is also protected at all stages of a criminal trial when the child is the accused. In each instance, the prohibition on publication allows the judge or magistrate to lift or limit the prohibition. Based on their international and comparative research and analysis of current law, the researchers submitted in the Constitutional Court that publication of all information arising from a divorce should be allowed, except the identities of any of the parties involved. In this way, the public remains informed about important legal developments, while the child’s right to privacy remains protected
Contact person: Me C Du Toit.
The South African government’s policies and laws were examined in this research project to determine the extent to which children’s socio-economic rights are being met through provisions aimed at improving the living conditions of the poorest children. The developing jurisprudence arising from the constitutional guarantees on socio-economic rights for children was examined. The Constitutional Court judgment of Grootboom, handed down in 2000, was initially met with disappointment by the children’s rights movement. The subsequent 2002 judgment in the Treatment Action Campaign case revived hope. A key question arising from these two landmark Constitutional Court judgments is whether children have a direct and immediate claim to have their socio-economic rights met. Is their claim, like the claim of adults, to be subjected to progressive realisation? Dr Ann Skelton explored the jurisprudence that was developed regarding the socio-economic rights of children living with their parents and those who are separated from their parents, as well as how far the courts will go in directing the executive to deliver on the socio-economic rights of children. She presented her findings at the Children in Danger Conference, which was held at Oxford University in the United Kingdom in July 2008. She found that the Constitutional Court in South Africa views all rights as justiciable, including socio-economic rights, and that the court is prepared to examine the state’s role in respecting, protecting, promoting and fulfilling its obligations. Although on a plain reading, section 28(1)(c) of the Constitution appears to provide for unqualified access to socio-economic rights by children, the Constitutional Court has read this in the context of section 26 and 27 socio-economic rights, which are subject to progressive realisation. In the Grootboom case, the Constitutional Court’s view was that children who are living with their parents must look to their parents for housing. The state only has the obligation in the alternative to provide shelter when, for example, children are removed from their families. In addition, the state has the responsibility to ensure a regulatory and practice environment that allows for the fulfilment of rights, and has a responsibility to deliver on section 26 and 27 rights to all people (including children living with their families) on the basis of progressive realisation. In the Treatment Action Campaign case, the court broadened the scope of the state’s duties to include situations where children were not physically separated from their parents but also when “the implementation of the right to parental or family care is lacking”. The position of children living apart from their parents has been viewed differently by the courts. Two high courts have ruled that they have a direct and immediately enforceable right to have their socio-economic needs met. Although this has yet to be tested in the Constitutional Court, it seems to be a logical corollary to their statements about the duties of the state to provide socio-economic rights in the alternative, for example, when children have been separated from their parents, or where such care is ‘lacking’. The jurisprudence will no doubt continue to develop, perhaps in the future reaping greater socio-economic results for children. In the meantime, the government will have to keep its policy and legislative promises and the new legislation will have to be effectively implemented if the living conditions of children in South Africa are to improve
Contact person: Dr AM Skelton.
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