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Summary: General overview of South Africa's national legal provisions on children's rights, including guidance on how to conduct further research.
National laws on children's rights Status of the CRC in national law For an international treaty, including the Convention on the Rights of the Child, to become part of national law and be directly applied by South African courts, it must be incorporated through further legislation. The Convention has not been incorporated and so cannot be directly enforced before national courts. Nonetheless, article 39 of the Constitution of South Africa requires courts, tribunals and fora to consider international law when interpreting the Bill of Rights as well as to interpret legislation and develop customary and common law in a way that promotes the spirits and objects of the Bill of Rights. Courts can and have, therefore, widely cited the Convention in their judgments to provide interpretive guidance and support for their reasoning. Constitution: Chapter 2 of the Constitution of South Africa (“the Bill of Rights”) contains an article specifically dedicated to the rights of children. Article 28 contains provisions on the rights of children with regards to the definition of a child; name and nationality; family and alternative care; neglect, abuse and degradation; exploitative labour practices; child labour; detention of children; legal assistance; armed conflict; and the child's best interests. As well as a large number of rights provisions that apply regardless of age, the Constitution contains a number of other provisions that specifically address the rights of children: Article 29: sets out education rights, including providing that everyone has a right to basic education; that everyone has a right to education in a language of their choice; and a right to establish and maintain independent educational institutions. Article 37: includes a number of children's rights within those that are non-derogable in a state of emergency, specifically in relation to maltreatment, abuse, neglect or degradation; exploitative labour practices; child labour; detention; and armed conflict. Schedules 4 and 5: set out the areas of competence of national and provincial legislatures, including in relation to education and child care facilities. Legislation: the Children's Act 2005 contains much of South African legislation in relation to children, nonetheless provisions relevant to children can be found in a number of Acts. Relevant legislation includes, but is by no means limited to: The Children's Act 2005 The Child Justice Act 2008 The Criminal Procedure Act 1977 The Correctional Services Act 1959 The Sexual Offences Act 1957 The Prevention and Combating of Trafficking in Persons Act 2003 The Children's Status Act 1987 The Child Care Act 1983 The Age of Majority Act 1972 The South African Schools Act 1996 The National Education Policy Act 1996 The National Youth Commission Act 1996 The Legal Aid Amendment Act 1996 The Hague Convention on the Civil Aspects of International Child Abduction Act 1997 The Basic Conditions of Employment Act 1996 The National Education Policy Act 1996 The Choice on Termination of Pregnancy Act 1996 The Guardianship Act 1993 The Maintenance Act 1963 The Births and Deaths Registration Act 1992 The National Youth Development Agency Act 2008 Note: many of these Acts have been amended since they were initially enacted. Amendment Acts are not listed here. Legal Research The official government information website of South Africa provides access to the Constitution (http://www.info.gov.za/documents/constitution/), Acts (http://www.info.gov.za/view/DynamicAction?pageid=544) and Bills (http://www.info.gov.za/view/DynamicAction?pageid=546) as well as a selection of other official documentation. The South African Legal Information Institute also maintains a database of Acts (http://www.saflii.org/za/legis/consol_act/) and regulations (http://www.saflii.org/za/legis/consol_reg/). In addition, the GlobaLex project at New York University has published a guide to legal research in South Africa (http://www.nyulawglobal.org/Globalex/South_Africa1.htm) and the World Legal Information Institute (http://www.worldlii.org/links/259.html) and the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/southafrica.php) both provide access to a selection of legal and governmental resources. Case Law CRC Jurisprudence The Convention on the Rights of the Child has been widely cited in national courts, including with regards to adoption (http://www.crin.org/Law/instrument.asp?InstID=1451), custody (http://www.crin.org/Law/instrument.asp?InstID=1584), corporal punishment (http://www.crin.org/Law/instrument.asp?InstID=1452), imprisonment (http://www.crin.org/Law/instrument.asp?InstID=1425), housing (http://www.crin.org/Law/instrument.asp?InstID=1499) and children with disabilities (http://www.crin.org/Law/instrument.asp?InstID=1707). Case Law Research The website of the Constitutional Court of South Africa maintains a database of its judgments (http://www.constitutionalcourt.org.za/site/home.htm) and the Supreme Court maintains a similar database of its own decisions (http://www.justice.gov.za/sca/judgments/judgem_sca.htm#sthash.JCDDPky3.dpbs). The South African Legal Information Institute also provides access to the case law of an extensive list of national courts (http://www.saflii.org/content/south-africa-index). All resources are available in English. Compliance with the CRC South Africa has not reported to the Committee on the Rights of the Child since 2000. Nonetheless, at the time of that report, the Committee noted that the South African Law Commission was undertaking a review of legislation and customary law with a view to amending areas of the law related to children, including with regards to family violence, HIV and AIDS, juvenile justice, expansion of the child-care system and sexually abused children. Since this review, the State has enacted the Children's Act, the Child Justice Act and legislation on the trafficking of persons, as such national legislation has changed significantly in the 13 years since the State last reported. Current legal reform projects Please contact CRIN if you are aware of any current legal reform projects.