Is it truly in the best interest of the child?
Section 28(2) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) states that a child’s best interests are of paramount importance in every matter concerning a child. Courts are thus mandated by the Constitution, which is the highest law in the land, to always give effect to what would be best for the child. This article will briefly consider and analyse this right as contained in our Bill of Rights in order to establish how the best interests of a child are determined by the courts. Any attempt to define the constitutional right as enshrined in section 28(2) of the Constitution should commence with a discussion of the Children’s Act 38 of 2005 (“the Act”). The Act was specifically adopted to give effect to certain rights of children as contained in the Constitution and to set out principles relating to the care and protection of children. Section 7 of the Act sets out factors which must be considered when the best interests of the child standard are applied. These factors are: “(a) the nature of the personal relationship between— (i) the child and the parents, or any specific parent; and (ii) the child and any other care-giver or person relevant in those circumstances; (b) the attitude of the parents, or any specific parent, towards— (i) the child; and (ii) the exercise of parental responsibilities and rights in respect of the child; (c) the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs; (d) the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from— (i) both or either of the parents; or (ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living; (e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis; (f) the need for the child— (i) to remain in the care of his or her parent, family and extended family; and (ii) to maintain a connection with his or her family, extended family, culture or tradition; (g) the child’s— (i) age, maturity and stage of development; (ii) gender; (iii) background; and (iv) any other relevant characteristics of the child; (h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development; (i) any disability that a child may have; (j) any chronic illness from which a child may suffer; (k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment; (l) the need to protect the child from any physical or psychological harm that may be caused by— (i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or (ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person; (m) any family violence involving the child or a family member of the child; and (n) which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.” The High Court has, with reference to the factors set out above, stated that the list “constitutes a non-exhaustive checklist of criteria which serve as guides relevant to the application of the best interest standard”. 1 It is accordingly clear that courts can consider any relevant factor when determining what the best interests of a child are. Courts may accordingly have recourse to any source of information of whatsoever nature when determining what would be in a child’s best interest. The “child’s best interests should [accordingly] not be mechanically sacrificed on the altar of jurisdictional formalism”. 2 The High Court is the upper guardian of children in South Africa and should not let legal niceties frustrate it in ensuring that a child’s best interest is protected and advanced in any matter before it. 3 This means, in short, that a court should have regard for any evidence and factors placed before it, and should allow parties to a dispute concerning a child as much leeway as possible to introduce relevant evidence. Courts can allow this due to its extremely broad powers in establishing what is in the best interests of a child in any given matter. 4 This will place the court in the best possible position to protect children. There are also other legislative interventions aimed at protecting and advancing the best interest of children. One such example is the Mediation in Certain Divorce Matters Act 24 of 1987 (the Mediation and Divorce Act”). The Mediation and Divorce Act contributes to advancing the best interests of children in South Africa by making provision for the appointment of a Family Advocate by the Minister of Justice and Constitutional Development. The Family Advocate is, in terms of section 4 of the Mediation and Divorce Act, responsible for conducting an enquiry in divorce matters and thereafter furnish the court with a report and recommendations concerning the welfare of the minor children in any marriage about to be dissolved. This advances the best interests of children since the evidence is placed before the court by an independent third party who does not have a personal interest in the matter. In conclusion, the best interests of any child are always of paramount importance in any matter concerning the child and must be given effect to. The legislator has adopted various pieces of legislation, in line with international conventions, in order to advance this constitutional right. What would be in a child’s best interest is a factual inquiry and courts should consider as much evidence as possible, including expert evidence by trained professionals, when considering this constitutional right. Reference List: Constitutional of the Republic of South Africa, 1996. Children’s Act, 38 of 2005. Mediation in Certain Divorce Matters Act, 24 of 1987. AD and another v DW and others (Centre for Child Law as amicus curiae; Department for Social Development as intervening party) [2007] ZACC B v B (CA&R60/2017) [2018]
The Purpose of the small claims court
The Constitution of the Republic of South Africa (“the Constitution”) does not explicitly provide for a right of appeal from a Small Claims Court judgment. However, section 34 of the Constitution does provide that “everyone has the right to have any dispute […] decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”. Nature and Purpose of the Small Claims Court In Chrish v the Commissioner, the High Court held that the Small Claims Court is a unique court and was developed to act as a forum that adjudicates smaller claims in an expeditious, less complicated and cost-effective manner. The idea behind the development of the Small Claims Court was, therefore, to establish a forum that would operate differently from ordinary courts. The Court, in this case, further held that the rules of procedure and evidence that apply to the ordinary courts in South Africa are not applicable in the Small Claims Court. Therefore, the rules that relate to the granting of an appeal from a judgment in an ordinary court do not apply to a Small Claims Court. Proponents of a Right of Appeal Proponents of a constitutional right of appeal could argue that section 34 of the Constitution implies a right of appeal. Proponents could argue that “fairness” in section 34 relates to the procedural elements of a hearing (and therefore implies a right to review), as well as the merits of a hearing (and thereby implies a right of appeal). It follows, proponents may argue, that it makes little sense for the Small Claims Court to recognise a right to review, which it does, but not a right of appeal. This is because both a procedural error and an error made on the merits of the case affect the fairness of the hearing. Opponents of a Right of Appeal Opponents of the constitutional right of appeal argue that if South Africa were to allow for an appeal of right, the very nature and purpose of a Small Claims Court would be compromised. The Small Claims Court was designed to reach lower-income citizens and to operate expeditiously, thereby save the court as well as the litigant time. If South Africa were to allow an appeal of right, the Small Claims Court would no longer be able to act as expeditiously as intended, as it would be occupied more and more by judgments that have been appealed. The Small Claims Court would therefore not be able to focus its attention on allowing other citizens the right of access to courts, and the Small Claims Court would ultimately diminish into but another ordinary court. In so doing, the innovation behind the creation of such a court would be lost. It is furthermore argued that it would be counter-intuitive to subject indigent litigants to a complicated appeal process. The Small Claims Court process should be conducted in a manner that seeks to accommodate ill-educated and unsophisticated litigants. This will only happen if the Small Claims Court process remains uncomplicated and straightforward. Opponents argue that South African courts are already overburdened, if it allows for appeals from Small Claims Court judgments, it will only aggravate an already pressing backlog. Although proponents for a right of appeal argue that it is only fair that a right of appeal should be implied in section 34 of the Constitution, opponents seem to be convinced that a right of appeal will have the very opposite effect of fairness. If South Africa allows for a right of appeal, citizens will ultimately be denied access to the Small Claims Court because of the overburdened court system in South Africa. And therefore, those citizens will be unfairly denied their section 34 right of access to courts. Conclusion In conclusion, it appears that opponents and proponents of a constitutional right of appeal from a Small Claims Court judgment have equally convincing arguments for their respective causes. Only time will tell, however, whether proponents of a right of appeal from a Small Claims Court judgment have made their case strong enough to convince the Legislature. Reference List: The Constitution of the Republic of South Africa, 1996 Chrish v Commissioner- Small Claims Court- Butterworth and Others (774/2005) [2007] ZAECHC 114 This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)