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C and Others v Department of Health and …

C and Others v Department of Health and Social Development, Gauteng and Others (CCT 55/11) [2012] ZACC 1; 2012 (2) SA 208 (CC); 2012 (4) BCLR 329 (CC) (11 January 2012)

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Constitutional Law

Brief Summary

Constitutional Law — Children’s Act — Constitutional validity of removal provisions — High Court declared sections 151 and 152 of the Children’s Act unconstitutional for failing to provide for automatic judicial review of child removal — Applicants, parents of children removed by state officials during a planned operation, challenged the constitutionality of the statutory framework that allowed such removals without immediate court oversight — Constitutional Court confirmed the High Court's declaration, emphasizing the necessity of judicial review to protect children's rights and ensure procedural fairness in removal cases.

Full Judgment Text (Click to expand)

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[2012] ZACC 1
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C and Others v Department of Health and Social Development, Gauteng and Others (CCT 55/11) [2012] ZACC 1; 2012 (2) SA 208 (CC); 2012 (4) BCLR 329 (CC) (11 January 2012)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 55/11
[2012] ZACC 1
In the matter between:
C
…..........................................................................................................
First
Applicant
M
…....................................................................................................
Second
Applicant
CENTRE FOR CHILD LAW
…...........................................................
Third
Applicant
and
DEPARTMENT OF HEALTH AND SOCIAL
DEVELOPMENT, GAUTENG
…......................................................
First
Respondent
CITY OF TSHWANE
METROPOLITAN MUNICIPALITY
…........................................
Second
Respondent
ITERELENG RESIDENTIAL
FACILITY FOR THE DISABLED
…...............................................
Third
Respondent
DESMOND TUTU PLACE OF SAFETY
…...................................
Fourth
Respondent
PABALELO PLACE OF SAFETY
…................................................
Fifth
Respondent
MINISTER FOR POLICE
….............................................................
Sixth
Respondent
MINISTER FOR SOCIAL DEVELOPMENT
…..........................
Seventh
Respondent
Heard on : 16 August 2011
Decided on : 11 January 2012
JUDGMENT
SKWEYIYA
J (Froneman J concurring):
Introduction
This case concerns the confirmation of a declaration of
constitutional invalidity of sections 151 and 152 of the Children’s

Act.
1
The North Gauteng High Court, Pretoria (High Court) declared these
sections unconstitutional to the extent that they provide
for a
child to be removed from family care by state officials and placed
in temporary safe care, but do not provide for the
child to be
brought before the children’s court for automatic review of
that removal.
2
In terms of section 172(2)(a) of the Constitution, an order of
constitutional invalidity by a High Court must be referred to
this
Court for confirmation, without which it will have no force.
3
More precisely, therefore, this case concerns the constitutionality
of the statutory framework for the removal of children
from their
family environment and their placement in temporary safe care at
the instance of the state.
Statutory framework
It is necessary first to set out the current statutory framework
for the removal of children from family care by state officials.

Chapter 9 of the Children’s Act regulates the treatment of
children deemed to be in need of care and protection.
4
This Chapter contemplates two routes for the removal of these
children to temporary safe care: section 151 provides for removal

by court order, while section 152 provides for removal without a
court order in certain circumstances.
Section 151(1) empowers the children’s court, if it appears
from testimony before it that a child is in need of care
and
protection, to order that a social worker investigate the matter
and report back within 90 days.
5
Section 151(2) further empowers the court, before receiving the
report, to order that the child be removed and placed in temporary

safe care, if this appears necessary for the safety and well-being
of the child.
6
Section 151(3) preserves the court’s general powers in
respect of investigations.
7
Section 151(4) requires a removal order to identify the child in
sufficient detail for the order to be executed.
8
Section 151(5) and (6) affords authorised people and accompanying
police officials extensive powers to effect the removal of
a
child.
9
Section 151(7) requires the person who has removed a child to give
notice of that fact to the child’s parent, guardian
or
care-giver and the provincial department of social development.
10
Section 151(8) requires the court to consider all relevant facts,
with the best interests of the child being the determining
factor
in any decision regarding removal.
11
Section
152(1) empowers a social worker or police official to remove a
child and place the child in temporary safe care, without
a court
order, if it is reasonably believed that: (a) the child is in need
of care and protection and needs immediate emergency
protection;
(b) the delay in obtaining a court order may jeopardise the child’s
safety and well-being; and (c) removal
is the best way to secure
the child’s safety and well-being.
12
Thereafter notice of that removal must be given to the child’s
parent, guardian or care-giver, the clerk of the children’s

court and the provincial department of social development.
13
Section 152(4) requires the removing authority to consider all
relevant facts, with the best interests of the child being the

determining factor.
14
Section 152(5), (6) and (7) imposes serious penalties for misuse of
the power to remove a child without a court order,
15
and section 152(8) requires compliance with a prescribed
procedure.
16
Section 155(1) requires that the children’s court must decide
whether a child, who was removed in terms of section 151
or section
152, is in need of care and protection.
17
Section 155(2) provides that a social worker must investigate and
compile a report on the matter within 90 days, before the
child is
brought before the children’s court.
18
Section 155(6), (7) and (8) enumerates the orders the children’s
court may make once the child has been brought before
it.
19
In
summary, the current statutory framework for the removal of
children from their families at the instance of the state

contemplates two procedural routes for removal. Firstly, a person
may testify to the children’s court that a particular
child
is in need of care and protection, and the court may order the
immediate removal of the child if this appears necessary
for the
child’s safety and well-being.
20
Secondly, a designated social worker or police official may remove
a child without a court order, if there is reason to believe
that
this is required urgently.
21
In both cases, a social worker will be required to compile a report
on whether the child is in need of care and protection,
within 90
days, after which the child must be brought before the children’s
court for a determination of whether she
or he is indeed in need of
care and protection.
22
There is no provision for automatic court review before compilation
of the report.
Factual background
The
first and second applicants are, respectively, Mr C, father of
a girl aged three, and Ms M, mother of two girls
aged one and
four. The third applicant is the Centre for Child Law, a law clinic
established by the University of Pretoria,
participating in this
matter as an institutional applicant, in the public interest and in
the interests of children in similar
circumstances to the children
of Mr C and Ms M.
23
The
first respondent is the Department of Health and Social
Development, Gauteng (Department). The second respondent is the

City of Tshwane Metropolitan Municipality (City). The third, fourth
and fifth respondents are, respectively, Itereleng Residential

Facility for the Disabled, Desmond Tutu Place of Safety and
Pabalelo Place of Safety, which are care facilities under the
direction of the Department. They play no part in these
proceedings. The sixth respondent is the Minister for Police and

the seventh respondent is the Minister for Social Development, who
is responsible for the administration of the Children’s
Act.
The first, sixth and seventh respondents have jointly made
submissions in these proceedings and are referred to collectively

as the state.
On
Friday 13 August 2010, Mr C was conducting his trade of
repairing shoes at a prominent intersection in Pretoria, as
he does
daily, but he was accompanied on that day by his daughter. His
partner, who usually looked after her during the day,
was in
hospital giving birth. Ms M, who begs for her living, was
present at the same intersection that day, accompanied
by an
assistant, as she is blind, and by her two daughters.
Social
workers employed by the Department, together with officials from
the City, had planned, for that day, an operation involving
the
removal of children from people found to be begging while
accompanied by children. This operation was well-planned and

publicised, but no court order had been sought for the removal of
these children. In execution of the operation, social workers

removed Mr C’s and Ms M’s children from their
care, and placed them in the Department’s care facilities,

without notifying the parents of where they were.
Proceedings in the High Court
Mr C
and Ms M, together with the Centre for Child Law, promptly
approached the High Court with a two-part application.
In Part 1,
they applied, on an urgent basis, for an order to restore their
children to their care. On 24 August 2010,
the High Court (per
Preller J) ordered that Mr C’s daughter be returned
immediately to his care and that Ms M’s
children remain
at the place of safety for five weeks, pending an investigation
into whether they needed alternative care.
24
By order of the children’s court, they have since been
returned to Ms M’s care, under the supervision of a

social worker.
25
In
Part 2, the applicants sought, among other things: (a) a
declaratory order in relation to the conduct of the social
workers;
and (b) a declaration of constitutional invalidity of sections 151
and 152 of the Children’s Act, to the extent
that they fail
to provide for judicial review of removal and placement decisions
made by social workers or police. This relief
was initially opposed
by the state, but subsequently was the subject of agreement between
the parties, resulting in a draft
order handed up to the High Court
on 20 January 2011. Nevertheless, written argument was filed and
oral argument was heard
on 13 May 2011.
On
27 May 2011, the High Court (per Fabricius J) observed that,
if a child is removed in terms of section 152 of the Children’s

Act, the matter will be heard for the first time by the children’s
court after the 90 days within which the social worker
is required
to investigate and compile a report.
26
In contrast, its predecessor, section 12 of the repealed Child Care
Act,
27
required that a child removed without a warrant had to be brought
before a court within 48 hours for a formal determination
of
whether that removal was justified, which would also allow a parent
to appear and to challenge the removal.
28
The High Court found that, although section 152 does require the
person conducting a removal to notify the parent, guardian
or
care-giver of the child, as well as the clerk of the children’s
court, this does not amount to a notice to appear
in court, as was
required under the repealed Child Care Act.
29
The
High Court held that this clearly does not create an opportunity
for automatic review of the removal within a reasonable
timeframe,
and that the lacuna created by the Children’s Act renders the
legislation procedurally deficient, with inadequate
protective
mechanisms in place to ensure that drastic interference with the
child’s right to parental care is not arbitrary,
unreasonable
or unjust.
30
The lacuna is compounded by section 155, which strongly implies
that there will be no review of the removal until after the
receipt
of the social worker’s report, and that the issue at that
stage would not be whether the removal was justified,
but rather
whether the child is in need of care and protection and, if so,
what the best outcome would be.
31
The High Court concluded that the state has a duty to put in place
measures that ensure the best interests of the child at
all times,
and that specific provision for the review of removals is a minimum
requirement of that duty.
32
Consequently, the High Court declared sections 151 and 152 of the
Children’s Act unconstitutional to the extent that
they fail
to provide for a child, who has been removed in terms of those
sections and placed in temporary safe care, to be
brought before
the children’s court for a review of the removal and
placement in temporary safe care.
33
The Court further made an interim order, pending confirmation of
the order of constitutional invalidity by this Court, to the
effect
that certain words would be read in to the impugned provisions to
remedy the unconstitutionality, as follows:
“
18.1.
Section 151(7) and Section 152(7) of the Act is to read as though
the following appears as Section (d):
‘
(d)
within 48 hours, place the matter before the Children’s Court
having jurisdiction for a review of the removal and continued

typographical errors in the original order. Confirmation is not
opposed by any party. An application was made from the bar by
the
applicants and the state, seeking an amendment of Form 36 of the
Regulations to the Children’s Act to include a notice
to the
parents or family of a child, removed in terms of section 151 or
152 of the Children’s Act, to appear in the children’s

court for a review of the removal.
The
applicants submit that the absence of a provision for automatic
review of the removal and placement in temporary safe care
of a
child is in breach of children’s constitutional rights to
family care or parental care, the best interests of the
child being
considered paramount and the rights to dignity and privacy to the
extent that they include and protect the right
to family life. The
balancing of these rights is necessary. But a critical part of this
balancing is automatic review of the
removal of the child. This
requirement, which was provided for in the repealed Child Care Act,
is also a cornerstone of international
law relating to the removal
of children. Its absence from the Children’s Act, it is
argued, thus represents a retrogressive
step.
The applicants contend that the inherent right of review of
administrative actions, enshrined in section 33 of the
Constitution,
35
is insufficient to provide adequate protection of the best
interests of the child for four reasons: (a) section 155(2) of the

Children’s Act strongly implies that there will be no review
of the removal; (b) even if there is such a right, it would
require
an application to be brought by the parent or child, which is too
onerous a burden; (c) the removal of a child from
parental care is
a serious infringement of important rights, which gives the state
an additional duty to take steps to ensure
the best interests of
the child, a minimum requirement of which is automatic review; and
(d) given the number of people affected
by the provision, it must
make expressly clear that automatic review is required in all
cases. Thus, the order of constitutional
invalidity must be
confirmed.
The
applicants urge that, subject to the correction of the error
identified in the notice of motion, the order of the High Court
is
sufficient to cure the constitutional invalidity.
36
Parliament would be entitled to amend the provisions at a later
stage should it seek a different solution.
The state associates itself with the applicants’
submissions. However, in addition to the reasons advanced by the
applicants,
the state contends that the impugned sections are
unconstitutional because they infringe section 34 of the
Constitution,
37
in that they oust the jurisdiction of the
children’s court for a period of 90 days, during which time
nobody may access
the court. Further, the limitation of
constitutional rights is neither reasonable nor justifiable under
section 36 of the Constitution.
Condonation
The applicants requested condonation for their failure to comply
with rule 16(4), as they had not annexed the correct High
Court
order to their main application papers. I would grant condonation.
Issues for determination
The
following broad issues arise for determination:
Are
any rights limited by the impugned provisions?
If
so, are these limitations reasonable and justifiable?
If
not, what are the appropriate remedies?
Are any rights limited by the impugned provisions?
The
coercive removal of a child from her or his home environment is
undoubtedly a deeply invasive and disruptive measure. Uninvited

intervention by the state into the private sphere of family life
threatens to rupture the integrity and continuity of family

relations, and even to disgrace the dignity of the family, both
parents and children, in their own esteem as well as in the
eyes of
their community. Both sections 151 and 152 of the Children’s
Act authorise removals, yet neither section subjects
removals to
automatic review, which would enable the affected family, including
the removed child, to make representations
on whether removal was
in the best interests of the child. Accordingly, it must be
determined whether the impugned provisions
impose limitations on
any rights enshrined in the Constitution.
The
removal of a child from the reach of her or his family clearly
constitutes a limitation of the child’s right to “family

care or parental care” in terms of section 28(1)(b) of the
Constitution.
38
Although section 28(1)(b) itself also contemplates “appropriate
alternative care when removed from the family environment”,

this is a secondary right, not an equivalent alternative right. It
does not necessarily render a removal constitutionally compatible

with the primary right to family care or parental care. If that
were the case, the primary right would be entirely superfluous
and
legally meaningless, and section 28(1)(b) would entrench only a
right to appropriate care, irrespective of environment.
In my view,
Van Dijkhorst J was correct in his interpretation of section
28(1)(b) in
Jooste v Botha
,
39
namely that it envisages—
“
a
child in [the] care of somebody who has custody over him or her. To
that situation every child is entitled. That situation the
State is
constitutionally obliged to establish, safeguard and foster. The
State may not interfere with the integrity of the family.”
40
This
interpretation is fortified by the formulation of the right in
international law, which we are bound by section 39(1)(b)
of the
Constitution to consider.
41
The African Charter on the Rights and Welfare of the Child (ACRWC)
42
provides that “[e]very child shall be entitled to the
enjoyment of parental care and protection and shall, whenever
possible, have the right to reside with his or her parents”,
43
while the United Nations Convention of the Rights of the Child
(UNCRC)
44
guarantees every child’s right “to know and be cared
for by his or her parents”,
45
and “to preserve his or her identity, including . . . family
relations as recognized by law without unlawful interference”.
46
That
section 28 creates distinct rights that are not subject to a single
internal qualification is also apparent from this Court’s

decision in
Fitzpatrick
:
47
“
Section
28(2) requires that a child’s best interests have paramount
importance in every matter concerning the child. The
plain meaning
of the words clearly indicates that the reach of section 28(2)
cannot be limited to the rights enumerated in section
28(1) and
section 28(2) must be interpreted to extend beyond those provisions.
It creates a right that is independent of those
specified in section
28(1).”
48
In my view, therefore, the impugned provisions also impose a
limitation on the “expansive guarantee”,
49
in section 28(2) of the Constitution, that “[a] child’s
best interests are of paramount importance in every matter

concerning the child.” In
S v M
,
50
this Court held:
“
The
paramountcy principle, read with the right to family care, requires
that the interests of children who stand to be affected
receive due
consideration. It does not necessitate overriding all other
considerations. Rather, it calls for appropriate weight
to be given
in each case to a consideration to which the law attaches the
highest value, namely, the interests of children who
may be
concerned.”
51
Section
28(2) of the Constitution requires an appropriate degree of
consideration
of the best interests of the child. Removal of
a child from family care, therefore, requires adequate
consideration. As a minimum,
the family,
52
and particularly the child concerned, must be given an opportunity
to make representations on whether removal is in the child’s

best interests. Accordingly, the impugned provisions of the
Children’s Act inflict a limitation on the right in section

28(2), in that they do not provide for adequate consideration of the
best interests of the child.
In addition to the limitation of the right to family or parental
care, removal without automatic judicial review also infringes
the
right of access to courts under section 34 of the Constitution.
53
Although section 45(1) of the Children’s Act provides that
the children’s court “may adjudicate any matter”

relating to the care, protection or well-being of a child,
54
and section 53 entitles any person acting in the interest of the
child to approach the children’s court,
55
this does not mean that the right of affected families to access to
courts is not impaired in practice. Although their access
to courts
is not denied, it is no doubt delayed. This Court has held before
that an affected party’s right of recourse
to a court of law
after the limitation of a right “does not cure the limitation
of the right; it merely restricts its
duration.”
56
Are these limitations reasonable and justifiable?
Having
found that the impugned provisions impose limitations on the rights
of children to family care or parental care and to
paramount
consideration of their best interests, as well as the right of
access to courts, it must now be considered whether
these
limitations pass constitutional muster. Section 36(1) of the
Constitution states:
“
The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including—
(a) the nature of the right;
(b) the importance of the
purpose of the limitation;
(c) the nature and extent of
the limitation;
(d) the relation between the
limitation and its purpose; and
(e) less restrictive means to
achieve the purpose.”
Children’s
rights, and the rights relating to family life, bear tremendous
importance in a caring constitutional democracy.
It is for this
reason that—
“
section
28 requires the law to make best efforts to avoid, where possible,
any breakdown of family life or parental care that
may threaten to
put children at increased risk. Similarly, in situations where
rupture of the family becomes inevitable, the
State is obliged to
minimise the consequent negative effect on children as far as it
can.”
57
In
Du Toit
,
58
this Court held that “[i]t is clear from section 28(1)(b) that
the Constitution recognises that family life is important
to the
well-being of all children”,
59
and in
S v M
, it emphasised “the importance of
maintaining the integrity of family care.”
60
The
purpose of the impugned provisions is a legitimate one, namely “to
protect children from discrimination, exploitation
and any other
physical, emotional or moral harm or hazards”,
61
and “to provide care and protection to children who are in
need of care and protection”.
62
The serious circumstances described in the definition of a “child
in need of care and protection”, in section 150
of the
Children’s Act,
63
testify to the importance of affording the state the power and
procedures to remove children from the family environment to
ensure
their care and protection. This is indeed required of the state by
the right of every child “to be protected from
maltreatment,
neglect, abuse or degradation” in section 28(1)(d) of the
Constitution,
64
and is contemplated in the second part of section 28(1)(b) of the
Constitution.
65
In
determining the appropriate relationship between the limitation and
its important purpose, it is helpful to consider the
applicable
international law. Article 19(1) of the ACRWC provides that “[n]o
child shall be separated from his parents
against his will, except
when a judicial authority determines in accordance with the
appropriate law that such separation is
in the best interest of the
child.” Furthermore, Article 9 of the UNCRC sets specific
requirements in respect of the
removal of children from their
families:
“
(1)
States Parties shall ensure that a child shall not be separated from
his or her parents against their will, except when competent

authorities subject to judicial review determine, in accordance with
applicable law and procedures, that such separation is necessary
for
the best interests of the child. . . .
(2) In any proceedings pursuant
to paragraph 1 of the present article, all interested parties shall
be given an opportunity to
participate in the proceedings and make
their views known. . . .”
66
In
S
v M
, this Court considered the interpretive influence of the
UNCRC on section 28 of the Constitution:
“
[S]ection
28 must be seen as responding in an expansive way to our
international obligations as a State party to the [UNCRC].
Section
28 has its origins in the international instruments of the United
Nations. Thus, since its introduction the [UNCRC] has
become the
international standard against which to measure legislation and
policies”.
67
(Footnote omitted.)
The
right to parental care or family care requires that the removal of
children from the family environment must be mitigated
in the
manner described in the UNCRC, in order to satisfy the standard set
for the limitation of rights in section 36(1) of
the Constitution.
The requirements that the removal be subject to automatic review
and that all interested parties, including
the child concerned, be
given an opportunity to be heard, in my view, stand as essential
safeguards of the best interests of
the child.
Despite
the importance of the purpose of the limitation, the removal and
separation of children from their families, for up
to 90 days,
cannot be taken lightly. This separation may rupture the family
unit and hamper the development of a child. It
is imperative,
therefore, that the statutory framework for the removal of children
provides for an appropriate degree of judicial
oversight of the
removals.
The
removal measures would be much less restrictive of the rights
concerned if they were subject to automatic judicial review
within
a reasonable time. An appearance in the children’s court soon
after the removal would allow the family, including
the child, to
make representations, and would allow the court to consider whether
the removal is in the best interests of the
child. If they fail to
afford this opportunity, the impugned provisions, despite the
importance of their purpose, are too restrictive
of the rights of
the child and the family, and therefore cannot survive
constitutional scrutiny. This is so in the light of
the
availability of a less restrictive alternative, namely provision
for an automatic appearance in the children’s court
within a
certain reasonable time after the removal, in order for the court
to review the removal. It is noteworthy that section
12 of the
repealed Child Care Act required a child removed without a warrant
to be brought before a court within 48 hours for
a formal
determination of whether that removal was justified.
68
It
might be argued that this remedy is already available, since no
provision precludes the family from approaching a court with
an
urgent application, in the exercise of their rights under sections
33 and 34 of the Constitution.
69
Although this may be true in a formal sense, it is not true in a
functional sense. It is unfair for the law to empower the
state to
initiate the removal of a child from her or his family, but to
place the onus on the affected family to initiate the
review of
that removal. By requiring the family to bear, at least initially,
the cost of pursuing review proceedings, the impugned
provisions
are too restrictive of children’s rights protected under
section 28(1)(b) and (2), as well as the right of
access to courts
in section 34 of the Constitution.
I
have considered whether the limitations on section 28(1)(b) and (2)
and section 34 of the Constitution brought about by sections
151
and 152 of the Children’s Act are reasonable and justifiable.
I conclude that the limitation cannot be justified.
Accordingly,
the impugned provisions are inconsistent with the Constitution to
the extent that they fail to provide for a child,
who has been
removed in terms of those provisions, to be brought before the
children’s court for a review of that removal.
It follows
that the declaration of constitutional invalidity by the High Court
falls to be confirmed.
I
have read the separate judgment prepared by my colleague Yacoob J
and I find myself unable to agree with his analysis
of the
limitation of rights and the question of its justification.
Yacoob J sees the limitation in the lack of automatic
review
of removals. I find the limitation in the removal itself. In my
view, the coercive removal of children from their family

environment, irrespective of the reasons for that removal, indeed
limits the children’s rights to parental care or family
care
and to paramount consideration of their best interests, as well as
the right of the children and their families to access
the courts.
The fact that there are strict requirements for removal to take
place does not mean that no rights are limited.
Rather, it serves
to render the limitation less restrictive of those rights, and
therefore more justifiable.
70
In this case, I find that the requirements are not strict enough,
since they do not include an automatic appearance in the
children’s
court for a review of the removal, and therefore that the
limitation is too restrictive of the rights concerned.
Accordingly,
the limitation is unjustifiable and the impugned provisions, in
terms of which the limitation takes place, are
unconstitutional.
It
is, however, necessary for this Court to determine what just and
equitable relief it ought to grant.
What are the appropriate remedies?
Having
determined that sections 151 and 152 of the Children’s Act
are unconstitutional, I now turn to the remedy sought
in relation
to the merits.
It
is curious that the High Court did not declare section 155(2)
unconstitutional, despite issuing an order striking certain
words
from it.
71
If the provision is not unconstitutional, a court surely would not,
and indeed could not, cure it by any means. In my view,
however,
the High Court was correct not to declare section 155(2)(b)
unconstitutional. Section 155 relates to the children’s

court’s consideration of the social worker’s report,
and the determination of whether the child in question is
in need
of care and protection, prospectively.
72
The introductory words “[b]efore the child is brought before
the children’s court” need not, and constitutionally

cannot, be construed so as to preclude a prior appearance before
the children’s court for a review of the removal itself.

Section 155(2)(b) is accordingly not unconstitutional in this
respect and requires no remedy.
Section
172 of the Constitution empowers this Court to declare a law that
is inconsistent with the Constitution invalid to the
extent of its
inconsistency. In that event the Court is required to make an order
that is just and equitable, including an
order suspending a
declaration of invalidity to allow a competent authority to correct
the defect. The decision that we should
make is whether this Court
should itself undertake a course that would remedy the defect or
leave it to Parliament to do. This,
of course, brings into
question, among other things, the doctrine of the separation of
powers in our constitutional democracy.
How a court exercises its duties to remedy the constitutional
invalidity of a statute calls for a degree of restraint in

appropriate circumstances,
73
The extent to which a court should refrain from interfering in the
legislative realm, however, will largely be determined by
the facts
and circumstances of each case, for which reason it would be
undesirable to lay down a general rule as to when or
how a court
should do so.
74
The
applicants pray for the remedies of reading-in and severance. The
state and the remaining respondents associate themselves
with the
request. Both remedies are sought in relation to section 155(2),
while only reading-in is sought in relation to sections
151(7) and
152(2). As I have already determined that section 155(2) is not
unconstitutional, the question of the appropriate
relief in
relation to it falls away, and only the question of reading-in in
relation to sections 151(7) and 152(2) remains.
In
the ordinary course, where reading-in can provide an effective
remedy, it will generally be preferable to a bald declaration
of
invalidity
75
and to a suspensive order, coupled with interim relief.
76
This preference of remedies, however, is not strict, but simply
indicates the relative suitability of remedial options. For
one to
gain a full appreciation of all remedial options, it is useful to
evaluate each possibility on its own merits.
It
is clear that a legal framework for the removal of children from
the home is of significant import to vindicating the rights
of
children, to protecting them from harm, to securing the rights of
parents and for specifying how the state’s duties
in relation
to children ought properly to be discharged in appropriate
circumstances. This framework is undoubtedly necessary.
It
is possible to order a suspension of invalidity to give the
Legislature an opportunity to cure the statutory defect.
77
Indeed, where
there exists a host of
possibilities for curing the constitutional invalidity and a court
is able to provide appropriate interim
relief to the affected
litigant, it will generally be best to permit the Legislature to
determine in the first instance how
the unconstitutionality should
be cured.
78
However,
the interests of children and their parents, particularly those who
are indigent, like Mr C and Ms M, should
bear no risk of
undue infringement, insofar as possible. If a suspensive order is
granted, then the offending provisions will
remain intact and will
continue to permit unjustifiable incursions into the rights of
children.
When reading words into a statute, the relevant considerations to
be borne in mind are what the consequences of the order would
be
and whether they would amount to an unconstitutional intrusion into
the legislative realm.
79
A court must therefore define the reading-in in a sufficiently
precise manner,
80
which is in keeping with the legislative scheme, so as to impair
“the legislative purpose as little as possible while
removing
the constitutional complaint.”
81
Reading-in
is most commonly used to cure unconstitutionality based on the
under-inclusiveness of a statutory provision that
unjustifiably
infringes the rights of identifiable groups that are excluded from
certain benefits.
82
However—
“
reading
in is not necessarily confined to cases in which it is necessary to
remedy a provision that is under-inclusive. There
is no reason in
principle why it should not also be used as part of the process of
narrowing the reach of a provision that is
unduly invasive of a
protected right.”
83
I
have found that sections 151 and 152 of the Children’s Act
are unconstitutional insofar as they do not provide for automatic

judicial review of the removal process and thereby lack a method
for determining whether there was just cause for the removal.
To
cure the deficit, something must be added to these sections.
Reading-in offers this solution. What is now required is to
assess
whether the reading-in, as suggested, cures the defect and is
framed with sufficient economy and precision, and, if
not, then
what the preferable alternatives would be.
The
applicants and the state submit that the insertion into both
sections 151(7) and 152(2) as subsection (d) of the following
words
would cure the unconstitutionality:
“
within
48 hours place the matter before the children’s court having
jurisdiction for a review of the removal and continued
placement of
the child, give notice of the date and time of the review to the
child’s parent, guardian or care-giver, and
cause the child to
be present at the review proceedings where practicable.”
Related to the reading-in of the abovementioned subsection (d), a
reading-in of the words emphasised below into section 152(3)(b)
is
also sought, so that it would provide:
“
(b)
without
delay but within 24 hours
refer the matter to a designated social worker
to
place the matter before the children’s court for review as
contemplated in section 152(2)(d) and
for investigation contemplated in section 155(2); and”.
At
the hearing the applicants and the state also submitted orally from
the bar that provision should be made in Form 36 of the
Regulations
to the Children’s Act, to include a notice to the parents or
family of a child, removed in terms of section
151 or 152, to
appear in the children’s court for a review of such removal.
It was submitted that, in contradistinction,
Form 4 of the
Regulations to the repealed Child Care Act made adequate provision
in this regard. This application, regrettably,
was made without
having furnished the Court with copies of the relevant
documentation. I need not decide this issue.
I
agree with the amendments to sections 151 and 152, as proposed by
Yacoob J in his judgment.
84
By
making a final order of this kind, however, I do not suggest that
the Court has crowded-out Parliament’s role in further

investigating how best to serve the interests of children, for whom
a removal from the home is necessary, and in enacting appropriate

legislation. Indeed, a final order of reading
-in
does not give the judiciary the ultimate word on pronouncing on the
law. Instead it initiates a conversation between the
Legislature
and the courts, for Parliament’s legislative power to amend
the remedy continues to subsist beyond the granting
of the relief,
and may be exercised within constitutionally permissible limits at
any future time.
85
I would therefore encourage the Legislature to exercise its
entitlement to alter the remedy, should it see fit to do so, in

view of its specialist expertise and, of course, subject to its
constitutional mandate.
Costs
No
argument has been advanced on why we should interfere with the
costs made by the High Court. That order stands. These being

confirmatory proceedings the applicants were obliged to come to
this Court and are thus entitled to costs.
YACOOB J
(Moseneke DCJ, Khampepe J, Nkabinde J and Van der Westhuizen J
concurring):
Introduction
The
North Gauteng High Court declared sections 151 and 152 of the
Children’s Act
86
unconstitutional only to the extent that the Act does not provide
for a child removed from family care
87
to be brought before the Children’s Court for automatic
review of the removal.
88
We are required to decide whether to confirm this declaration of
invalidity.
89
I
have read the judgments of Jafta J and Skweyiya J with considerable
interest. I do not agree with the reasoning and conclusion
by Jafta
J. Although I agree with Skweyiya J’s conclusion that the
High Court order should be confirmed in substance,
the approach
preferred in this judgment is sufficiently different to warrant
writing. I do however also agree with the reasoning
and the
conclusion that condonation for non-compliance with Rule 16(4)
should be granted.
Removals
authorised by the Act
Removals
authorised by sections 151 (section 151 removal) and 152 (section
152 removal) of the Act must first be briefly described.
Three
provisions of section 151 are central to a decision of this case.
The first
90
empowers a Children’s Court to refer the question whether the
child is in need of care and protection to a designated
social
worker for investigation, if it appears from evidence before it
that a child residing within its area of jurisdiction
is in need of
care and protection. But a court making this referral may go
further: it may place the child in temporary safe
care, but only if
this course is necessary for the safety and well-being of the
child.
91
Finally, in making its decision the court is enjoined to ensure
that the best interests of the child is “the determining

factor in any decision whether a child in need of care and
protection should be removed and placed in temporary safe care”.
92
The court must also take into account “the safety and
well-being of the child as the first priority.”
93
The
section 152 removal is not effected by a court but by a designated
social worker or police official, both of whom are empowered
to
place the child in temporary safe care in certain circumstances.
The social worker or police official may do so only if
there are
reasonable grounds for believing that three pre-requisites are met.
These are that: first, the child is not only
in need of care and
protection but needs immediate emergency protection; second, the
delay in obtaining a court order may jeopardise
the child’s
safety and well-being; and third, the removal of the child from the
home environment is the best way to secure
the child’s safety
and well-being.
94
Like in section 151 removals, the social worker and police official
are also mandated to ensure that the best interests of
children is
the determining factor in the decision whether to remove the child,
and to take into account the safety and well-being
of the child “as
the first priority.”
95
It must also be mentioned that the misuse of this power by a social
worker is “unprofessional or improper conduct”;
96
misuse by a police official is ground for disciplinary proceedings
against that official.
97
Additionally,
the Act places certain reporting and referral duties upon the
person removing the child pursuant to a section
151(2) court
order,
98
the designated social worker
99
and the police official
100
who remove the children in terms of section 152. Each of these
people who effect the removal has a duty to inform the parent,

guardian or care-giver of the child’s removal without delay
but within 24 hours and only if that person can be readily
traced.
101
The person effecting the removal is also required to report the
matter to the relevant provincial Department of Social
Development.
102
The person who removes the child pursuant to a court order
103
and the police official
104
who makes the removal pursuant to section 152 are required to refer
the matter to a designated social worker for investigation.
A
designated social worker and the police officer who remove the
child, are both obliged to inform the clerk of the Children’s

Court having jurisdiction of the removal “not later than the
next court day”.
105
It
will have been noted that children can only be removed if, amongst
other things, they are found in need of care and protection.
The
Act defines that a child is deemed in need of care and protection
if the child:
“
(a)
has been abandoned or orphaned and is without any visible means of
support;
(b) displays behaviour which
cannot be controlled by the parent or care-giver;
(c) lives or works on the
streets or begs for a living;
(d) is addicted to a
dependence-producing substance and is without any support to obtain
treatment for such dependency;
(e) has been exploited or lives
in circumstances that expose the child to exploitation;
(f) lives in or is exposed to
circumstances which may seriously harm that child’s physical,
mental or social well-being;
(g) may be at risk if returned
to the custody of the parent, guardian or care-giver of the child as
there is reason to believe
that he or she will live in or be exposed
to circumstances which may seriously harm the physical, mental or
social well-being
of the child;
(h) is in a state of physical
or mental neglect; or
(i) is being maltreated,
abused, deliberately neglected or degraded by a parent, a
care-giver, a person who has parental responsibilities
and rights or
a family member of the child or by a person under whose control the
child is.”
106
The
person who removes the child in terms of a court order and the
police official who removes the child on an urgent basis
must refer
the matter for investigation. That investigation is prescribed
elsewhere in the Act.
107
The provision
108
obliges a designated social worker within 90 days of the section
151 or section 152 removal
109
to compile a report on whether the child is in need of care and
protection. The Children’s Court must then hear the matter

and make an appropriate order.
110
In
summary, it must be said that the conditions that must be fulfilled
before a child can be removed are indeed stringent. A
child can
never be removed unless a court concludes or the designated social
worker or police official reasonably believes
that the child is in
need of care and protection. And that term is carefully expanded in
the Act. Once this requirement has
been established the Children’s
Court may order removal of the child only if this is necessary for
the safety and well-being
of the child. A court cannot do so if
removal is merely desirable.
A
social worker or police official can similarly only effect a
removal if, in their reasonable belief, immediate emergency
protection is so necessary that the delay in obtaining a court
order may jeopardise the child’s safety and well-being,
and
then only if the removal of the child is the best way to secure
that child’s safety and well-being. If there is time
to
obtain a court order the designated social worker and police
official must take steps to get one. The designated social
worker
and police official are precluded from doing what they think is
better for the child: removal must be best for the child’s

safety and security. Finally, there are important after-removal
duties and prescribed penalties for social workers or police

officials who misuse their removal powers.
In the
High Court
The
High Court accepted the submissions of the parties in relation to
the reasons why the absence of an automatic court review
process
after the removal had been effected rendered the provision
inconsistent with the Constitution. The Court emphasised
that the
social worker’s report would be available only in 90 days and
that poor, illiterate and young people “would
not be able
generally speaking, to provide proper instructions to anyone, even
if they were ultimately assisted by an organisation”.
111
The Court also said pertinently “[i]t would simply be too
onerous to expect a parent, guardian or caregiver of a child
. . .
subjected to a removal . . . to bring an application of their own
accord to either the Children’s Court or the
High Court.”
112
It was also stressed that the “removal relates to the liberty
of a child and to an intrusion into family life.”
113
The
Court accordingly held that the provisions were inconsistent with
the Constitution to the extent that there was no provision
for
automatic review by a court in the presence of the child as well as
the parents, guardian or care-givers (I will refer
to parents,
guardians and care-givers as parents). There was neither evidence
nor submission before the High Court on whether
the limitation was
justifiable, and the Court does not refer to this aspect in its
judgment. The Court granted the remedy set
out in an agreed draft
order.
The
High Court accordingly made the following order in relation to the
constitutionality of the provisions:
114
“
17.
Sections 151 and 152 of the Children’s Act 38 of 2005 (‘The
Act’) are declared unconstitutional to the extent
that they
fail to provide for a child who has been removed in terms of those
sections and placed in temporary safe care to be
brought before the
children’s court for a review of the placement in temporary
safe care.”
Evaluation
This
Court will confirm the declaration of invalidity of section 151 and
section 152 of the Act if it has been established that
these
provisions limit rights in the Constitution and that the limitation
is not reasonable and justifiable in an open and
democratic society
based on human dignity, equality and freedom. If the declaration of
invalidity falls to be confirmed, the
appropriateness of the remedy
granted by the High Court must be investigated.
In
my view, the rights that are limited by the failure to provide for
automatic review by a court in the presence of the child
and
parents are those set out in section 28 of the Constitution
concerning children and section 34 of the Constitution concerning

access to courts. I deal first with section 28.
Section
28, to the extent relevant, provides:
“
(1)
Every child has the right—
. . .
(b) to family care or parental
care, or to appropriate alternative care when removed from the
family environment;
(c) to basic nutrition,
shelter, basic health care services and social services;
(d) to be protected from
maltreatment, neglect, abuse or degradation;
(e) to be protected from
exploitative labour practices;
(f) not to be required or
permitted to perform work or provide services that—
(i) are inappropriate for a
person of that child’s age; or
(ii) place at risk the child’s
well-being, education, physical or mental health or spiritual, moral
or social development;
. . .
(2) A child’s best
interests are of paramount importance in every matter concerning the
child.”
The
fact that these removal provisions have been enacted to give effect
to section 28 cannot be gainsaid. It can never be in
the interests
of children for their safety or well-being to be endangered. The
removal provisions are aimed precisely at preventing
this and
ensuring that the interests of the children are positively catered
for. One has to do no more than compare the circumstances
in which
children can be found in need of care and protection
115
as well as the circumstances in which a Children’s Court, a
designated social worker or a police official may remove
children,
on the one hand, with the detailed protection afforded to children
in section 28(1), on the other, to be driven to
the conclusion that
the purpose of the provisions is to protect, secure and prevent the
violation of the constitutional rights
of children. It is neither
necessary nor appropriate to enter into a mechanical comparison. It
is in this context that a vex
question comes up: how can the
legislative provisions here in issue that are palpably designed to
protect the constitutional
rights of children be inconsistent with
section 28?
As I
see it the answer is apparent. Despite the tightly defined
circumstances in which children can be removed, there exists
always
the possibility that a removal would be wrongly made. The High
Court proceedings demonstrate this.
116
Mr C who was repairing shoes on a street corner had his daughter
with him because his partner, who normally looked after the
child,
had been hospitalised. Ms M, a blind person, was accompanied by her
two daughters while begging. Designated social workers
removed the
children from both Mr C and Ms M. The High Court ordered that Mr
C’s daughter be returned to his care, but
that Ms M’s
children remain at the place of safety. If not for the application
made with the assistance of Lawyers for
Human Rights and the Centre
for Child Law, Mr C and his daughter would have been separated. The
little child would probably
have been housed in a departmental care
centre for about 90 days. It is unlikely that he would have been
able to sustain an
application to the High Court. And there may be
many parents and children in this position.
It
is in the interests of children that an incorrect decision by a
court made without hearing the child or the parents, or by
a
designated social worker or police official be susceptible to
automatic review by a court, in the ordinary course, in the

presence of the child and the parents. It follows from this that
sections 151 and 152 do not provide for this and are therefore

constitutionally wanting. Sections 151 and 152 of the Act, though
their positive provisions are aimed at the best interests
of
children fall short of achieving this result. They carry the
potential of being counter-productive because they fail to
provide
for a Children’s Court automatic review in the presence of
the child and the parents. In this sense, and to this
extent, the
laws are not in the best interests of children. They therefore
limit the rights contained in section 28(2).
I evaluate the law against the requirements of section 34 of the
Constitution:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
The
child has the right to challenge the appropriateness of his or her
removal. Parents, in the exercise of their duty to care
for the
child, have a duty to challenge the correctness of the removal.
Whether a removal has been rightly ordered or effected
is a
justiciable issue. The fact that the parents have the right to
challenge the correctness of the decision is, in my view,
neither
here nor there. It is in the interests of children for any law that
effects the removal of children to provide, at
the same time, for
proceedings in which the correctness of the removal is tested by a
Children’s Court in the presence
of the child and parents.
Section 34 is limited in the section 151 court order because
neither the parents nor the children
would have had the opportunity
to argue that the removal order should not be made, and they would
probably not have an opportunity
to do so for 90 days. When
designated social workers or police officials remove children,
section 34 is again limited, perhaps
to a somewhat greater extent.
This is so because the removal has occurred without any court
order, akin to a situation where
there is statutory authorisation
for people to take the law into their own hands without a court
order.
117
Justification
The
justification analysis in this case is not riddled with complexity.
Section 36(1) of the Constitution provides:
“
The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including—
(a) the nature of the right;
(b) the importance of the
purpose of the limitation;
(c) the nature and extent of
the limitation;
(d) the relation between the
limitation and its purpose; and
(e) less restrictive means to
achieve the purpose.”
I
stress that it is the limitation that must be justified and not the
entire removal provision. There is nothing wrong with
these
provisions in so far as they authorise removal in the tightly
defined circumstances prescribed. The difficulty with these

sections lies in the fact that they do not provide for automatic
judicial review in the presence of the child and parents.
The
question to decide is whether there can be any purpose legitimate
or otherwise, that can begin to afford some basis on
which a
justification analysis can begin. To my mind there is none.
It
is therefore not surprising that the state, represented by the
Minister for Police and the Minister for Social Development,

ultimately offered nothing in justification both in the High Court
and in this Court. I can think of no justification either.
The
limitation cannot be justified. Sections 151 and 152 of the Act are
inconsistent with the Constitution because they infringe
the rights
of children and parents in that they fail to provide for automatic
review by a court of any removal ordered or effected
in terms of
these provisions in the presence of the children and parents
concerned.
Remedy
It
will be useful to set out those provisions of the impugned sections
that are relevant for purposes of determining an appropriate

remedy:
Where
a court orders removal, section 151(7) provides:
“
The
person who has removed a child in terms of the court order must—
(a) without delay but within 24
hours inform the parent, guardian or care-giver of the child of the
removal of the child, if that
person can readily be traced; and
(b) within 24 hours refer the
matter to a designated social worker for investigation in terms of
section 155(2); and
(c) report the matter to the
relevant provincial department of social development.”
Where
a designated social worker effects removal, section 152(2)
provides:
“
If a
designated social worker has removed a child and placed the child in
temporary safe care as contemplated in subsection (1),
the social
worker must—
(a) without delay but within 24
hours inform the parent, guardian or care-giver of the child of the
removal of the child, if that
person can readily be traced; and
(b) not later than the next
court day inform the relevant clerk of the children’s court of
the removal of the child; and
(c) report the matter to the
relevant provincial department of social development.”
Where
a police official effects removal, section 152(3) provides:
“
If a
police official has removed a child and placed the child in
temporary safe care as contemplated in subsection (1), the police

official must—
(a) without delay but within 24
hours inform the parent, guardian or care-giver of the child of the
removal of the child, if that
person can readily be traced; and
(b) refer the matter to a
designated social worker for investigation contemplated in section
155(2); and
(c) without delay but within 24
hours notify the provincial department of social development of the
removal of the child and of
the place where the child has been
placed; and
(d) not later than the next
court day inform the relevant clerk of the children’s court of
the removal of the child.”
It
was agreed in the High Court that a reading-in order was
appropriate. The draft order submitted by the parties in relation

to this aspect was made an order of Court:
“
18.
Pending the confirmation of the order of invalidity, referred to in
paragraph 17 of this order, by the Constitutional Court:
(see
section 167(5) of the Constitution)
18.1 Section 151(7) and Section
152(7) of the Act is to read as though the following appears as
Section (d):
‘
(d)
within 48 hours, place the matter before the Children’s Court
having jurisdiction for a review of the removal and continued

appropriate remedy in the circumstances of this case. The parties
before the Court were wise to request it and the Court cannot
be
faulted for granting it, as distinct from any other remedy.
This
Court is enjoined to make a just and equitable order.
118
It cannot be just and equitable, without qualification, either to
declare section 151 and section 152 inconsistent with the

Constitution and invalid, or to suspend the order of invalidity to
allow the legislature to remedy the defect. The former option
is
unthinkable because, in that event, the removal provisions aimed at
protecting the best interests of children as well as
their other
constitutional rights will not be available until Parliament rights
matters. This consequence will militate against
justice and equity
as well as the interests of the children to an extent that cannot
be countenanced by this Court. The latter
option is equally
untenable. A suspension of the declaration of invalidity, without
more, will most likely result in parents
and children, like Mr C
and his young daughter, being separated from each other without
warrant for a period of up to 90 days.
This Court cannot take this
consequence lightly.
In
my view therefore the only feasible way forward is reading-in. This
course will not unduly intrude into the domain of Parliament

because Parliament can amend the statute at any time. Nor can it be
said, in the light of the nature of the infringement found,
that
there are numerous options available to Parliament by which to cure
the defect. It is now necessary to examine the reading-in
ordered
by the High Court in detail to test its appropriateness.
It
will have been noticed that the reading-in is directed at
increasing the responsibilities of the person who in fact removes

the child pursuant to a court order as well as the designated
social worker or police official who removed the children. This

general approach is beyond criticism. But the High Court order
reveals two technical errors. In the first place, the order

inadvertently refers to section 152(7) which deals with something
different. The order I propose will therefore not refer to
section
152(7) at all. Secondly, while the High Court order made reference
to section 152(3) which is concerned with the removal
by a police
official, no additional duty to facilitate automatic review is
placed on the designated social worker who effects
the removal by
some reading-in in relation to section 152(2). This must be
provided for.
We
must now evaluate the reading-in ordered by the High Court in
substance. The reading-in of an additional paragraph (d) into

section 151(7) poses two difficulties. The first is that the person
effecting the removal is to place the matter before the
Children’s
Court. But we do not know who the person effecting the removal will
be and whether that person will possess
the expertise to place the
matter before the Children’s Court. I think the answer lies
in the substance of the order
of the High Court in relation to
section 152(3)(b) in which the police official effecting the
removal is obliged to refer the
matter to a designated social
worker to place the matter before the Children’s Court. In my
view, it will be appropriate
for the court making the removal order
to refer the matter to a designated social worker.
The
second difficulty revolves around the use of the 48 hour period
which might commence say on Friday evening and end on Sunday

evening. And if the obligation of the police official is to refer
the matter to a designated social worker we need to specify
two
time limits: one within which the matter must be referred to the
designated social worker and another time by which the
social
worker must place the matter before the Children’s Court. In
the circumstances, it is appropriate to read in a
new subsection to
be numbered 2A into section 151 reading as follows:
“
(2A)
The court ordering the removal must simultaneously refer the matter
to a designated social worker and direct that social
worker to
ensure that:
the removal is placed
before the Children’s Court for review before the expiry of
the next court day after the removal;
and
the child concerned and the
parents, guardian or care-giver as the case may be are, unless this
is impracticable, present in
court.”
We
must now concern ourselves with section 152(2) which was not dealt
with by the High Court and which is about the duties of
a
designated social worker who removes the child. I would add a
sub-paragraph (d) reading:
“
(d)
ensure that:
the removal is placed
before the Children’s Court for review before the expiry of
the next court day after the removal;
and
the child concerned and the
parents, guardian or care-giver as the case may be are, unless this
is impracticable, present in
court.”
The
following reading-in into section 152(3)(b) is appropriate. I would
suggest that the duty of the police official to refer
the matter to
a designated social worker in section 152(3)(b) of the Act should
be modified. However reading-in alone will
render the section
difficult to understand. Accordingly a combination of severance and
reading-in must be used. In my view,
the appropriate modification
is to ensure that the duties of the police official bring about the
same result as the court order
referring the matter to a designated
social worker as described in paragraph [91] above. This can be
accomplished by severing
the words “for investigation
contemplated in section 155(2); and”; reading in the words
“of the removal before
the end of the first court day after
the day of the removal” and “who must ensure that”;
and reading in subsections
(i), (ii) and (iii). The reformulation
of section 152(3)(b) that I would propose reads as follows:
“
(b)
refer
the matter
of
the removal before the end of the first court day after the day of
the removal
to
a designated social worker
who
must ensure that:
the removal is placed
before the Children’s Court for review before the expiry of
the next court day after the referral;
the child concerned and the
parents, guardian or care-giver as the case may be are, unless this
is impracticable, present in
court; and
the investigation
contemplated in section 155(2) is conducted.”
Costs
Attorneys’
fees are determined by our Rules and are calculable irrespective of
whether the matter is opposed.
119
However, the appropriateness of counsel fees must be assessed on
the basis of the agreement between the parties that counsel
would
charge as if the matter was unopposed. Our order must reflect this.
Order
The
following order is made:
1. Condonation is granted.
2. The declaration of invalidity of section 151 and section 152 of
the Children’s Act 38 of 2005, made on 27 May 2011 by
the
North Gauteng High Court under Case No. 47723/2010, is confirmed.
3. The orders of the High Court in paragraph 18 of its judgment are
set aside and replaced with the orders in paragraphs 4 to
6 below.
4. An additional paragraph to be numbered 2A is read-in to section
151 of the Children’s Act 38 of 2005 as follows:
“
(2A) The court ordering the removal must
simultaneously refer the matter to a designated social worker and
direct that social
worker to ensure that:
(i) the removal is placed before the Children’s Court for
review before the expiry of the next court day after the removal;

and
(ii) the child concerned and the parents, guardian or care-giver as
the case may be are, unless this is impracticable, present
in
court.”
5. An additional paragraph to be numbered (d) is read in to section
152(2) of the Act as follows:
“
(d) ensure that:
the
removal is placed before the Children’s Court for review
before the expiry of the next court day after the removal;
and
the
child concerned and the parents, guardian or care-giver as the case
may be are, unless this is impracticable, present in
court.”
6. Section 152(3)(b) is severed and replaced by a section reading:
“
(b) refer the matter of the removal before
the end of the first court day after the day of the removal to a
designated social
worker who must ensure that:
the
removal is placed before the Children’s Court for review
before the expiry of the next court day after the referral;
the
child concerned and the parents, guardian or care-giver as the case
may be are, unless this is impracticable, present in
court; and
the
investigation contemplated in section 155(2) is conducted.”
7. The Minister for Police and the Minister for Social Development
are ordered to pay the applicants costs jointly and severally.
8. The taxing master must assess the reasonableness of counsel fees
as if the matter before this Court was not opposed.
JAFTA J
(Mogoeng CJ concurring):
Introduction
The
issue raised sharply in this case is whether the Constitution
requires a provision that authorises a removal of a child
from
parental care to provide for automatic judicial review. More
precisely whether section 28 of the Constitution requires
that the
removal of children from parental care should always be subject to
automatic review. If this is not what the Constitution
demands,
then the impugned provisions cannot be held to be inconsistent with
it for the sole reason that they fail to provide
for automatic
review. This is the only ground on which the constitutional
challenge was mounted.
I
have had the benefit of reading the judgments of Yacoob J and
Skweyiya J, which find that sections 151 and 152 of the Children’s

Act
120
are inconsistent with the Constitution. For reasons that follow I
am unable to agree with the finding of constitutional inconsistency

and the concomitant declaration of invalidity. Instead I find that
on the ground raised the applicants have failed to prove
that the
impugned provisions are inconsistent with the Constitution.
Since
these are confirmation proceedings, this Court may confirm the
declaration of invalidity made by the High Court only if
it is
satisfied that the impugned provisions are inconsistent with the
Constitution. This finding must be based on the ground
raised by
the applicants. In an application for an order declaring
legislation to be invalid for being inconsistent with the

Constitution, the onus is on the applicant to prove the
inconsistency relied upon.
121
Proceedings
in the High Court
The
applicants launched an urgent application in the High Court for the
return of the children. They also sought an order declaring

sections 151 and 152 of the Children’s Act constitutionally
invalid to the extent that they fail to provide for an automatic

review of the removal of children, done in terms of these sections.
The
Department of Health and Social Development, Gauteng and other
entities were cited as respondents. None of them opposed
the
granting of the relief sought by the applicants. The case came
before Preller J on 24 August 2010. He issued an order directing

that the first applicant’s daughter be returned to her father
immediately and that the daughters of the second applicant
be kept
at a place of safety pending an investigation on whether they were
in need of care and protection. These children were
subsequently
returned to their parents in terms of an order issued by the
Children’s Court.
The
determination of the issue relating to the constitutional validity
of the impugned provisions was deferred to a later date.
On that
date the case came before Fabricius J and the parties presented him
with a consent draft order which sought to declare
the impugned
provisions unconstitutional. The learned Judge directed that
written argument be filed and the parties were asked
to present
oral argument at a later hearing. Having heard argument, the High
Court was satisfied that the parties’ draft
should be made an
order of court.
Consistent
with the draft, the High Court issued an order in the following
terms:
“
17.
Sections 151 and 152 of the Children’s Act 38 of 2005 (“The
Act”) are declared unconstitutional to the extent
that they
fail to provide for a child who has been removed in terms of those
sections and placed in temporary safe care to be
brought before the
children’s court for a review of the placement in temporary
safe care.
18. Pending the confirmation of
the order of invalidity, referred to in paragraph 17 of this order,
by the Constitutional Court:
(see section 167(5) of the
Constitution)
18.1 Section 151(7) and Section
152(7) of the Act are to read as though the following appears as
Section (d):
“
(d)
within 48 hours, place the matter before the Children’s Court
having jurisdiction for a review of the removal and continued

placement of the child, give notice of the date and time of the
review to the child’s parent, guardian or caregiver, and
cause
the child to be present at the review proceedings where
practicable.”
18.2 Section 152(3)(b) of the
Act is to read as if the following words appear therein:
18.2.1 “
without delay
but within 24 hours”
immediately before the word “refer;
and
18.2.2 “
to place the
matter before the Children’s Court for review as contemplated
in section 152(2)(d) and”
immediately before the words
“for investigation”
18.3 Section 152(3)(b) of the
Act will accordingly read as follows:
“
(b)
without delay but within 24 hours refer the matter to a designated
social worker to place the matter before the children’s
court
for review as contemplated in Section 152(2)(d) and for
investigation contemplated in section 155(2); and”
18.4 Section 155(2)(b) of the
Act is to read as if the words “
Before the child is brought
before the children’s court,”
appearing immediately
before the words “
a designated social worker”
have been deleted there from.
19. The first, sixth and
seventh respondents jointly and severally are to pay the following
costs:
19.1 The opposed costs of the
application and the costs occasioned by the opposition to Part A of
the notice of motion, the costs
are to include the costs of the
hearings on 20 and 23 August 2010, in relation to the latter hearing
the costs to include the
costs occasioned by the employment of two
counsel.
19.2 In the context of Part B
of the notice of motion each party is to bear its own costs.
I do not deem it appropriate or
justified to grant the prayer sought against the particular (but
unidentified) social workers.”
However,
it is unclear from the High Court’s judgment whether the
impugned provisions were in fact found to be inconsistent
with the
Constitution. Bearing in mind the ground on which the validity of
these provisions was challenged, neither the judgment
nor the order
shows against which section of the Constitution the validity of the
provisions was tested. In short the judgment
does not reveal the
section of the Constitution the impugned provisions were found to
be inconsistent with.
Section
172 of the Constitution empowers the courts to declare an Act of
Parliament to be invalid only if it is inconsistent
with the
Constitution and the power to so declare is limited to the extent
of the inconsistency.
122
It follows that if the High Court did not find that an
inconsistency exists, it could not competently declare the
invalidity.
The difficulty is that this cannot be determined from
its judgment. In these circumstances this Court may confirm the
High
Court’s order if it is satisfied that the impugned
provisions are inconsistent with the Constitution, owing to their

failure to provide for automatic review.
Any
inconsistency between the impugned provisions and the Constitution
must be established with reference to the ground on which
the
challenge was based. In its affidavit the Centre for Child Law
asserted:
“
There
is no requirement that there be any form of judicial oversight
during the 90 day investigation period. Moreover, there is
no return
date provision or opportunity for a parent to obtain access to the
Children’s Court for the parent to oppose
the removal and show
reasons why removal was not necessary. As is illustrated by this
matter, the parent must approach the High
Court to have the decision
to remove set aside.
As stated above, the
requirement of judicial oversight regarding the removal of a child
is set out in both the United Nations
Convention on the Rights of
the Child and the African Charter of the Rights and Welfare of the
Child before one is allowed to
separate children from their parents
and deprive children of their right to parental care. Accordingly,
children’s right
to parental care and not to be separated
without such decision being subjected to judicial review is
entrenched in international
law. This is the broader context in
which sections 28(1)(b) and 28(2) must be read.
I therefore submit that
sections 151 and 152 are unconstitutional insofar as they fail to
provide an appropriate mechanism for
judicial review.”
The
applicants rely on section 28 of the Constitution
123
as the benchmark against which the validity of the impugned
provisions must be tested. While accepting that section 28(1)(d)

authorises the removal of a child from parental care, the
applicants argue that the removal constitutes a limitation of the

right to parental care entrenched in section 28(1)(b) of the
Constitution. They submit that the tension between these two
provisions of section 28 may be managed by striking a proper
balance which may be achieved through automatic review. Relying
on
the United Nations Convention on the Rights of the Child
(Convention) and the African Charter on the Rights and Welfare
of
the Child (Charter) the applicants submit that automatic review is
an entrenched standard applicable to the removal of children.
124
Does
section 28 require that legislation permitting the removal of
children must provide for automatic review?
Section
28 deals with the rights of children. It provides:
“
(1)
Every child has the right—
(a) to a name and a nationality
from birth;
(b) to family care or parental
care, or to appropriate alternative care when removed from the
family environment;
(c) to basic nutrition,
shelter, basic health care services and social services;
(d) to be protected from
maltreatment, neglect, abuse or degradation;
(e) to be protected from
exploitative labour practices;
(f) not to be required or
permitted to perform work or provide services that—
(i) are inappropriate for a
person of that child’s age; or
(ii) place at risk the child’s
well-being, education, physical or mental health or spiritual, moral
or social development;
(g) not to be detained except
as a measure of last resort, in which case, in addition to the
rights a child enjoys under sections
12 and 35, the child may be
detained only for the shortest appropriate period of time, and has
the right to be—
(i) kept separately from
detained persons over the age of 18 years; and
(ii) treated in a manner and
kept in conditions, that take account of the child’s age;
(h) to have a legal
practitioner assigned to the child by the state, and at state
expense, in civil proceedings affecting the
child, if substantial
injustice would otherwise result; and
(i) not to be used directly in
armed conflict, and to be protected in times of armed conflict.
(2) A child’s best
interests are of paramount importance in every matter concerning the
child.
(3) In this section ‘child’
means a person under the age of 18 years.”
Section
28 does not refer to automatic review at all. Therefore the
requirement for judicial review in the Convention does not
form
part of the section. Nor can it be incorporated into the section.
Consequently, it cannot be used as a constitutional
standard for
determining the validity of legislation. This is so despite the
fact that the Convention and the Charter were
ratified and are
binding on South Africa.
125
International law may form part of our law if it is not
inconsistent with the Constitution or an Act of Parliament. This

illustrates that where there is an inconsistency between
international law and an Act of Parliament, the latter prevails.
There
is a basic principle concerning constitutional invalidity that
bears repeating. Legislation can be declared invalid only
if it is
shown to be inconsistent with a specific provision of the
Constitution. Accordingly, the impugned provisions can be
so
declared owing to their failure to provide for automatic review if
section 28 requires that they should provide for automatic
review.
Properly constructed, the section does not require automatic
review. It follows that the impugned provisions cannot
be declared
invalid for failing to provide for automatic review because there
is no constitutional benchmark requiring automatic
review.
Do sections 151 and 152 limit the right to parental care?
The
question whether these provisions limit the right to parental care
turns on the interpretation of the right, its content
and scope.
The right to parental care is one of three rights entrenched in
section 28(1)(b). The others are the right to family
care and the
right to appropriate alternative care. The inclusion of the right
to appropriate alternative care indicates the
recognition in the
Constitution that there are circumstances in which the rights to
family care or parental care may not be
enjoyed.
In
determining the scope of the right to parental care, section 28
must be read as a whole. Each provision must be read in conformity

with the other provisions and effect must be given to all of them.
126
Section 28(1)(d) confers on every child the right to be protected
from maltreatment, neglect, abuse or degradation. This section

binds the state to adopt legislative and other measures designed to
protect children from neglect or abuse.
127
This is in addition to the general obligation to “respect,
protect, promote and fulfil” the rights entrenched in
the
Bill of Rights.
128
This
Court is duty-bound to construe various provisions of the
Constitution in a harmonious manner that gives effect to all

provisions. The courts cannot interpret the Constitution in a way
that renders some of its provisions redundant. In
United
Democratic Movement
this Court said:
“
A
court must endeavour to give effect to all the provisions of the
Constitution. It would be extraordinary to conclude that a
provision
of the Constitution cannot be enforced because of an irreconcilable
tension with another provision. When there is tension,
the courts
must do their best to harmonise the relevant provisions, and give
effect to all of them.”
129
Section
28(2) plays a vital role in determining the scope of the right to
parental care. The section obliges this Court to construe
the right
to parental care in a manner that protects and advances the
interests of children. It decrees that the best interests
of a
child must always be dominant in every decision that involves a
child.
In
the context of section 28(1)(b) read with section 28(1)(d) and
section 28(2), the scope of the right to parental care cannot

include parental care that is harmful or detrimental to the safety
and well-being of a child. It cannot be claimed that section

28(1)(b) entitles a child to parental care that is harmful to its
safety and well-being. To read this right in a manner that
includes
harmful care would be inconsistent with section 28(1)(d) and would
legitimise the abuse of children, something which
is not
countenanced by the Constitution.
It
follows that the right to parental care envisaged in section
28(1)(b) is limited to parental care that is beneficial to a
child.
In other words, this section does not protect harmful parental
care. Consequently, legislation which authorises a removal
of a
child from harmful parental care cannot limit the right in section
28(1)(b). Instead that legislation would be consistent
with section
28(1)(d) and section 28(2).
Do
sections 151 and 152 apply to parental care contemplated in section
28(1)(b)?
The
relevant part of section 151 of the Children’s Act reads:
“
(1)
If, on evidence given by any person on oath or affirmation before a
presiding officer it appears that a child who resides
in the area of
the children’s court concerned is in need of care and
protection, the presiding officer must order that
the question of
whether the child is in need of care and protection be referred to a
designated social worker for an investigation
contemplated in
section 155 (2).
(2) A presiding officer issuing
an order in terms of subsection (1) may also order that the child be
placed in temporary safe
care if it appears that it is necessary for
the safety and well-being of the child.
. . . .
(8) The best interests of the
child must be the determining factor in any decision whether a child
in need of care and protection
should be removed and placed in
temporary safe care, and all relevant facts must for this purpose be
taken into account, including
the safety and well-being of the child
as the first priority.”
This
section empowers the Children’s Court to grant an order for
the removal of a child to a temporary place of care only
if it is
necessary for the safety and well-being of the child concerned. The
need for removal must be established by means
of evidence given
under oath. Even then, the determining factor must be the best
interests of the child and the priority must
be the safety and
well-being of the child.
In
part, section 152 provides:
“
(1) A
designated social worker or a police official may remove a child and
place the child in temporary safe care without a court
order if
there are reasonable grounds for believing—
(a) that the child—
(i) is in need of care and
protection; and
(ii) needs immediate emergency
protection;
(b) that the delay in obtaining
a court order for the removal of the child and placing the child in
temporary safe care may jeopardise
the child’s safety and
well-being; and
(c) that the removal of the
child from his or her home environment is the best way to secure
that child’s safety and well-being.
. . . .
(4) The best interests of the
child must be the determining factor in any decision whether a child
in need of care and protection
should be removed and placed in
temporary safe care, and all relevant facts must for this purpose be
taken into account, including
the possible removal of the alleged
offender in terms of section 153 from the home or place where the
child resides, and the
safety and well-being of the child as the
first priority.
(5) Misuse of a power referred
to in subsection (1) by a designated social worker in the service of
a designated child protection
organisation—
(a) constitutes unprofessional
or improper conduct as contemplated in section 27 (1)(b) of the
Social Service Professions Act,
1978 (Act No. 110 of 1978) by that
social worker; and
(b) is a ground for an
investigation into the possible withdrawal of that organisation’s
designation.
(6) Misuse of a power referred
to in subsection (1) by a designated social worker employed in terms
of the Public Service Act
or the Municipal Systems Act constitutes
unprofessional or improper conduct as is contemplated in section
27(1)(b) of the Social
Service Professions Act, 1978 (Act No. 110 of
1978) by that social worker.
(7) Misuse
of a power referred to in subsection (1) by a police official
constitutes grounds for disciplinary proceedings against
such police
official as contemplated in
section
40
of the South African Police Service Act, 1995 (Act No. 68 of 1995).”
Section
152 empowers designated social workers and police officials to
remove children in need of care and protection to a temporary
place
of care. They can do this only in cases where the child is in need
of “immediate emergency” protection and
the delay in
obtaining a court order for the removal may jeopardise the child’s
safety and well-being. If the child is
removed from its home
environment, the removal must be the best way to secure its safety
and well-being. The best interests
of the child must be the
determining factor in reaching the decision to remove.
The
section imposes stringent requirements for the exercise of the
power to remove and only children who are in need of care
and
protection may be so removed. It forbids the misuse of the power by
declaring that the abuse of the power it confers would
constitute
unprofessional or improper conduct which would lead to disciplinary
action taken against the offending official.
It
is apparent from the text of both sections that they do not apply
to parental care envisaged in section 28(1)(b). Instead
they
constitute legislative measures that are consistent with section
28(1)(d) and section 28(2). It cannot be gainsaid that
the impugned
provisions amount to measures which the state is constitutionally
obliged to put in place for the benefit of children.
In
Government
of the Republic of South Africa and Others v Grootboom and Others
130
Yacoob J said:
“
[T]he
State must provide the legal and administrative infrastructure
necessary to ensure that children are accorded the protection

contemplated by section 28. This obligation would normally be
fulfilled by passing laws and creating enforcement mechanisms for

the maintenance of children, their protection from maltreatment,
abuse, neglect or degradation, and the prevention of other forms
of
abuse of children mentioned in section 28.”
131
(Footnote omitted.)
As
measures designed to protect children from harmful parental care,
the impugned provisions do not limit the right to parental
care. On
the contrary, they advance children’s interests which are
paramount to any decision involving a child.
Yacoob
J finds that the impugned provisions limit the rights in section
28(2) because they do not provide for automatic review
of an
incorrect decision by a court or a police official or a designated
social worker. I am unable to agree. Any removal of
a child who is
not in need of care and protection would fall outside the ambit of
the impugned provisions. These provisions
cannot be invoked to
justify the removal, nor can they be faulted for conduct they do
not authorise. I conclude that the impugned
provisions are
consistent with section 28 of the Constitution.
Section
34 of the Constitution cannot, in my view, be invoked to test the
validity of the impugned provisions because the applicants
did not
rely on this section in the High Court and we are concerned with
the confirmation of the order granted by that Court.
A party who
challenges the constitutional validity of a statute must state the
grounds on which the attack is based in its
founding papers.
132
In this Court too, the applicants did not rely on section 34 in
seeking confirmation of the order granted by the High Court.

Section 34 was mentioned for the first time in the written argument
filed in this Court by the respondents. It was argued that
the
impugned provisions preclude the Children’s Court from
considering a removal before the expiry of 90 days. But this

requirement is contained in section 155(2) of the Act, the validity
of which is not challenged.
For
these reasons I would not confirm the order issued by the High
Court.
For
the Applicants: Advocate AM Skelton instructed by Lawyers for Human
Rights.
For the First, Sixth and Seventh
Respondents: Advocate SK Hassim and Advocate MPD Chabedi instructed
by the State Attorney, Pretoria.
1
Act
38 of 2005.
2
Chirindza
and Others v Gauteng Department of Health and Social Welfare and
Others
, North Gauteng High Court, Pretoria, Case No. 47723/2010,
27 May 2011;
[2011] 3 All SA 625
(GNP) (High Court judgment).
3
Section
172(2)(a) of the Constitution provides:
“
The Supreme Court of Appeal,
a High Court or a court of similar status may make an order
concerning the constitutional validity
of an Act of Parliament, a
provincial Act or any conduct of the President, but an order of
constitutional invalidity has no force
unless it is confirmed by the
Constitutional Court.”
4
Section
150(1) and (2) describes the circumstances in which a child is
deemed to be in need of care and protection:
“
(1) A child is in need of
care and protection, if the child—
(a) has been abandoned or orphaned and is without any
visible means of support;
(b) displays behaviour which cannot be controlled by
the parent or care-giver;
(c) lives or works on the streets or begs for a living;
(d) is addicted to a dependence-producing substance and
is without any support to obtain treatment for such dependency;
(e) has been exploited or lives in circumstances that
expose the child to exploitation;
(f) lives in or is exposed to circumstances which may
seriously harm that child’s physical, mental or social
well-being;
(g) may be at risk if returned to the custody of the
parent, guardian or care-giver of the child as there is reason to
believe
that he or she will live in or be exposed to circumstances
which may seriously harm the physical, mental or social well-being
of the child;
(h) is in a state of physical or mental neglect; or
(i) is being maltreated, abused, deliberately neglected
or degraded by a parent, a care-giver, a person who has parental
responsibilities
and rights or a family member of the child or by a
person under whose control the child is.
(2) A child found in the following circumstances may be
a child in need of care and protection and must be referred for
investigation
by a designated social worker—
(a) a child who is a victim of child labour; and
(b) a child in a child-headed household.”
5
Section
151(1) provides:
“
If, on evidence given by any
person on oath or affirmation before a presiding officer it appears
that a child who resides in the
area of the children’s court
concerned is in need of care and protection, the presiding officer
must order that the question
of whether the child is in need of care
and protection be referred to a designated social worker for an
investigation contemplated
in section 155(2).”
6
Section
151(2) provides:
“
A presiding officer issuing
an order in terms of subsection (1) may also order that the child be
placed in temporary safe care
if it appears that it is necessary for
the safety and well-being of the child.”
7
Section
151(3) provides:
“
When referring the question
whether the child is in need of care and protection in terms of
subsection (1) or when making an order
in terms of subsection (2),
the children’s court may exercise any of the functions
assigned to it in terms of section 50(1)
to (3).”
Section
50(1) to (3) in turn provides:
“
(1) A children’s court
may, subject to
section
155(9)
, before it decides a matter, order any person—
(a) to carry out an investigation or further
investigation that may assist the court in deciding the matter; and
(b) to furnish the court with a report and
recommendation thereon.
(2) An investigation or further investigation must be
carried out—
(a) in accordance with any prescribed procedures; and
(b) subject to any directions and conditions determined
in the court order.
(3) The court order may authorise a designated social
worker or any other person authorised by the court to conduct the
investigation
or further investigation to enter any premises
mentioned in the court order, either alone or in the presence of a
police official,
and on those premises—
(a) remove a child in terms of
sections
47
and
151
;
(b) investigate the circumstances of the child;
(c) record any information; and
(d) carry out any specific instruction of the court.”
8
Section
151(4) provides:
“
An order issued in terms of
subsection (2) must identify the child in sufficient detail to
execute the order.”
9
Section
151(5) and (6) provides:
“
(5) A person authorised by a
court order may, either alone or accompanied by a police official—
(a) enter any premises mentioned in the order;
(b) remove the child from the premises; and
(c) on those premises exercise any power mentioned in
section 50(3)(a) to (d).
(6) A police official referred to in subsection (5) may
use such force as may be reasonably necessary to overcome any
resistance
against the entry of the premises contemplated in
subsection (5)(a), including the breaking of any door or window of
such premises:
Provided that the police official shall first audibly
demand admission to the premises and notify the purpose for which he
or
she seeks to enter such premises.”
10
Section
151(7) provides:
“
The person who has removed a
child in terms of the court order must—
(a) without delay but within 24 hours inform the
parent, guardian or care-giver of the child of the removal of the
child, if that
person can readily be traced; and
(b) within 24 hours refer the matter to a designated
social worker for investigation in terms of section 155(2); and
(c) report the matter to the relevant provincial
department of social development.”
11
Section
151(8) provides:
“
The best interests of the
child must be the determining factor in any decision whether a child
in need of care and protection
should be removed and placed in
temporary safe care, and all relevant facts must for this purpose be
taken into account, including
the safety and well-being of the child
as the first priority.”
12
Section
152(1) provides:
“
A designated social worker or
a police official may remove a child and place the child in
temporary safe care without a court
order if there are reasonable
grounds for believing—
(a) that the child—
(i) is in need of care and protection; and
(ii) needs immediate emergency protection;
(b) that the delay in obtaining a court order for the
removal of the child and placing the child in temporary safe care
may jeopardise
the child’s safety and well-being; and
(c) that the removal of the child from his or her home
environment is the best way to secure that child’s safety and
well-being.”
13
Section
152(2) and (3) provides:
“
(2) If a designated social
worker has removed a child and placed the child in temporary safe
care as contemplated in subsection
(1), the social worker must—
(a) without delay but within 24 hours inform the
parent, guardian or care-giver of the child of the removal of the
child, if that
person can readily be traced; and
(b) not later than the next court day inform the
relevant clerk of the children’s court of the removal of the
child; and
(c) report the matter to the relevant provincial
department of social development.
(3) If a police official has removed a child and placed
the child in temporary safe care as contemplated in subsection (1),
the
police official must—
(a) without delay but within 24 hours inform the
parent, guardian or care-giver of the child of the removal of the
child, if that
person can readily be traced; and
(b) refer the matter to a designated social worker for
investigation contemplated in section 155(2); and
(c) without delay but within 24 hours notify the
provincial department of social development of the removal of the
child and of
the place where the child has been placed; and
(d) not later than the next court day inform the
relevant clerk of the children’s court of the removal of the
child.”
14
Section
152(4) provides:
“
The best interests of the
child must be the determining factor in any decision whether a child
in need of care and protection
should be removed and placed in
temporary safe care, and all relevant facts must for this purpose be
taken into account, including
the possible removal of the alleged
offender in terms of section 153 from the home or place where the
child resides, and the
safety and well-being of the child as the
first priority.”
15
Section
152(5), (6) and (7) provides:
“
(5) Misuse of a power
referred to in subsection (1) by a designated social worker in the
service of a designated child protection
organisation—
(a) constitutes unprofessional or improper conduct as
contemplated in section 27(1)(b) of the Social Service Professions
Act,
1978 (Act No. 110 of 1978) by that social worker; and
(b) is a ground for an investigation into the possible
withdrawal of that organisation’s designation.
(6) Misuse of a power referred to in subsection (1) by
a designated social worker employed in terms of the Public Service
Act
or the Municipal Systems Act constitutes unprofessional or
improper conduct as is contemplated in section 27(1)(b) of the
Social
Service Professions Act, 1978 (Act No. 110 of 1978) by that
social worker.
(7) Misuse of a power referred to in subsection (1) by
a police official constitutes grounds for disciplinary proceedings
against
such police official as contemplated in section 40 of the
South African Police Service Act, 1995 (Act No. 68 of 1995).”
16
Section
152(8) provides:
“
Any person who removes a
child must comply with the prescribed procedure.”
17
Section
155(1) provides:
“
A children’s court must
decide the question of whether a child who was the subject of
proceedings in terms of section 47,
151, 152 or 154 is in need of
care and protection.”
18
Section
155(2) provides:
“
Before the child is brought
before the children’s court, a designated social worker must
investigate the matter and within
90 days compile a report in the
prescribed manner on whether the child is in need of care and
protection.”
19
Section
155(6), (7) and (8) provides:
“
(6) The children’s
court hearing the matter may—
(a) adjourn the matter for a period not exceeding 14
days at a time; and
(b) order that, pending decision of the matter, the
child must—
(i) remain in temporary safe care at the place where
the child is kept;
(ii) be transferred to another place in temporary safe
care;
(iii) remain with the person under whose control the
child is;
(iv) be put under the control of a family member or
other relative of the child; or
(v) be placed in temporary safe care.
(7) If the court finds that the child is in need of
care and protection, the court may make an appropriate order in
terms of section
156.
(8) If the court finds that the child is not in need of
care and protection, the court—
(a) must make an order that the child, if the child is
in temporary safe care, be returned to the person in whose control
the
child was before the child was put in temporary safe care;
(b) may make an order for early intervention services
in terms of this Act; or
(c) must decline to make an order, if the child is not
in temporary safe care.”
20
Section
151(1) and (2).
21
Section
152(1).
22
Section
155(1) and (2).
23
Section
38 of the Constitution provides in the relevant part:
“
Anyone listed in this section
has the right to approach a competent court, alleging that a right
in the Bill of Rights has been
infringed or threatened, and the
court may grant appropriate relief, including a declaration of
rights. The persons who may approach
a court are—
. . .
(c) anyone acting as a member of, or in the interest
of, a group or class of persons;
(d) anyone acting in the public interest”.
24
High
Court judgment above n 2 at para 4.
25
Id.
26
High
Court judgment above n 2 at para 12.
27
Act
74 of 1983.
28
High
Court judgment above n 2 at para 12.
29
Id.
30
Id
at para 13.
31
Id
at para 14.
32
Id.
33
Id
at para 17.
The
High Court declined to make any order in respect of the conduct of
the social workers who removed the children of Mr C
and Ms M
from their care. Id at para 19.
34
Constitutional
Court Rule 16(4) provides:
“
A person or organ of state
entitled to do so and desirous of applying for the confirmation of
an order in terms of section 172(2)(d)
of the Constitution shall,
within 15 days of the making of such order, lodge an application for
such confirmation with the Registrar
and a copy thereof with the
Registrar of the court which made the order, whereupon the matter
shall be disposed of in accordance
with directions given by the
Chief Justice.”
Section
172(2)(d) of the Constitution provides:
“
Any person or organ of state
with sufficient interest may appeal, or apply, directly to the
Constitutional Court to confirm or
vary an order of constitutional
invalidity by a court in terms of this subsection.”
35
Section
33 provides:
“
(1) Everyone has the right to
administrative action that is lawful, reasonable and procedurally
fair.
(2) Everyone whose rights have been adversely affected
by administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect
to these rights, and must—
(a) provide for the review of administrative action by
a court or, where appropriate, an independent and impartial
tribunal;
(b) impose a duty on the state to give effect to the
rights in subsections (1) and (2); and
(c) promote an efficient administration.”
Parliament
has enacted the
Promotion of Administrative Justice Act 3 of 2000
to
give effect to these rights.
36
See
the reading-in order of the High Court, quoted in above.
37
Section
34
provides:
“
Everyone has the right to
have any dispute that can be resolved by the application of law
decided in a fair public hearing before
a court or, where
appropriate, another independent and impartial tribunal or forum.”
38
Section
28(1)
provides in the relevant part:
“
Every child has the right—
. . .
(b) to family care or parental care, or to appropriate
alternative care when removed from the family environment”.
39
2000
(2) SA 199
(T).
40
Id
at 208F.
41
Section
39(1)
provides in the relevant part:
“
When interpreting the Bill of
Rights, a court, tribunal or forum—
. . .
(b) must consider international law”.
42
OAU
Doc CAB/LEG/24.9/49 (1990). The ACRWC was adopted on 11 July 1990
and entered into force on 29 November 1999. South Africa
signed the
ACRWC on 10 October 1997 and ratified it on 7 January 2000.
43
Article
19(1) of the ACRWC.
44
28
ILM
1456 (1989). The UNCRC was adopted on 20 November 1989
and entered into force on 2 September 1990. South Africa signed the
UNCRC
on 29 January 1993 and ratified it on 16 June 1995.
45
Article
7(1) of the UNCRC.
46
Article
8(1) of the UNCRC.
47
Minister
for Welfare and Population Development v Fitzpatrick and Others
[2000] ZACC 6
;
2000 (3) SA 422
(CC);
2000 (7) BCLR 713
(CC).
48
Id
at para 17.
49
Sonderup
v Tondelli and Another
[2000] ZACC 26
;
2001 (1) SA 1171
(CC);
2001 (2) BCLR 152
(CC) at para 29.
50
S
v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008
(3) SA 232
(CC);
2007 (12) BCLR 1312
(CC).
51
Id
at para 42.
52
See
the analogous case of
New Brunswick (Minister of Health and
Community Services) v G (J)
[1999] 3 SCR 46
at para 73, in which
the Supreme Court of Canada held:
“
Effective parental
participation at the hearing is essential for determining the best
interests of the child in circumstances
where the parent seeks to
maintain custody of the child. The best interests of the child are
presumed to lie within the parental
home. However, when the state
makes an application for custody, it does so because there are
grounds to believe that is not the
case. A judge must then determine
whether the parent should retain custody. In order to make this
determination, the judge must
be presented with evidence of the
child’s home life and the quality of parenting it has been
receiving and is expected
to receive. The parent is in a unique
position to provide this information to the court. If denied the
opportunity to participate
effectively at the hearing, the judge may
be unable to make an accurate determination of the child’s
best interests.”
53
Quoted
in full above n 37.
54
Section
45(1)
provides:
“
Subject to
section 1(4)
, a
children’s court may adjudicate any matter, involving—
(a) the protection and well-being of a child;
(b) the care of, or contact with, a child;
(c) paternity of a child;
(d) support of a child;
(e) the provision of—
(i) early childhood development services; or
(ii) prevention or early intervention services;
(f) maltreatment, abuse, neglect, degradation or
exploitation of a child, except criminal prosecutions in this
regard;
(g) the temporary safe care of a child;
(h) alternative care of a child;
(i) the adoption of a child, including an inter-country
adoption;
(j) a child and youth care centre, a partial care
facility or a shelter or drop-in centre, or any other facility
purporting to
be a care facility for children; or
(k) any other matter relating to the care, protection
or well-being of a child provided for in this Act.”
55
Section
53 provides:
“
(1) Except where otherwise
provided in this Act, any person listed in this section may bring a
matter which falls within the jurisdiction
of a children’s
court, to a clerk of the children’s court for referral to a
children’s court.
(2) The persons who may approach a court, are:
(a) A child who is affected by or involved in the
matter to be adjudicated;
(b) anyone acting in the interest of the child;
(c) anyone acting on behalf of a child who cannot act
in his or her own name;
(d) anyone acting as a member of, or in the interest
of, a group or class of children; and
(e) anyone acting in the public interest.”
56
Chief
Lesapo v North West Agricultural Bank and Another
[1999] ZACC
16
;
2000 (1) SA 409
(CC);
1999 (12) BCLR 1420
(CC) at para 20. See
also
De Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3)
SA 785
(CC);
1998 (7) BCLR 779
(CC) at para 90.
57
S
v M
above n 50 at para 20.
58
Du
Toit and Another v Minister of Welfare and Population Development
and Others (Lesbian and Gay Equality Project as Amicus Curiae)
[2002] ZACC 20
;
2003 (2) SA 198
(CC);
2002 (10) BCLR 1006
(CC).
59
Id
at para 18.
60
S
v M
above n 50 at para 38.
61
Section
2(f) of the Children’s Act.
62
Section
2(g) of the Children’s Act.
63
See
above n 4.
64
Section
28(1) of the Constitution provides:
“
Every child has the right—
(d) to be protected from maltreatment, neglect, abuse
or degradation”.
65
Section
28(1) of the Constitution provides:
“
Every child has the right—
(b) to family care or parental care, or to appropriate
alternative care when removed from the family environment”.
66
Article
9(1) and (2) of the UNCRC.
67
S
v M
above n 50 at para 16.
68
Section
12(2) of the Child Care Act provided:
“
The policeman, social worker
or authorized officer who has so removed a child shall as soon
thereafter as may be—
(a) inform the parent or guardian of the said child or
person in whose lawful custody the child is of his removal if such
parent,
guardian or person is known to be in the district from where
the child was removed and can be traced without undue delay;
(b) inform a children’s court assistant concerned
of the reasons for the child's removal; and
(c) bring the child or cause him to be brought before
the children’s court of the district in which is situate the
place
from where the child was removed.”
69
See
above n 35 and n 37.
70
Likewise,
the setting of strict requirements for the use of lethal force by
police officers, in terms of
section 49
of the
Criminal Procedure
Act 51 of 1977
, does not mean that the right to life is not limited
when such force is used. Rather, it means that the limitation is
less restrictive
of the right to life and therefore more
justifiable.
71
High
Court judgment above n 2 at para 18.4.
72
See
section 155(1)
, (2), (6), (7) and (8) of the Children’s Act,
quoted in full above n 17, n 18 and n 19.
73
Glenister
v President of the Republic of South Africa and Others
[2008]
ZACC 19
;
2009 (1) SA 287
(CC);
2009 (2) BCLR 136
(CC) at para 42 and
National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others
[1999]
ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) (
National
Coalition
) at para 66.
74
National
Coalition
above n 73 at para 66.
75
Van
Rooyen and Others v The State and Others (General Council of the Bar
of South Africa intervening)
[2002] ZACC 8
;
2002 (5) SA 246
(CC);
2002 (8) BCLR 810
(CC) at para 88.
76
J
and Another v Director General, Department of Home Affairs, and
Others
[2003] ZACC 3
;
2003 (5) SA 621
(CC);
2003 (5) BCLR 463
(CC) at para 22.
77
Section
172(1)(b)(ii) of the Constitution.
78
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA
936
(CC);
2000 (8) BCLR 837
(CC) at para 64.
79
National
Coalition
above n 73
at para 68.
80
Id
at para 75;
Jaftha v
Schoeman and Others; Van Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005 (2) SA 140
(CC);
2005 (1)
BCLR 78
(CC) at para 61; and
Khosa and
Others v Minister of Social Development and Others; Mahlaule and
Others v Minister of Social Development and Others
[2004]
ZACC 11
;
2004 (6) SA 505
(CC);
2004 (6) BCLR 569
(CC) (
Khosa
)
at para 88.
81
South
African Liquor Traders’ Association and Others v Chairperson,
Gauteng Liquor Board, and Others
[2006]
ZACC 7
;
2009 (1) SA 565
(CC);
2006 (8) BCLR 901
(CC) at para 37.
82
National
Coalition
above n 73;
Minister
of Home Affairs and Another v Fourie and Another (Doctors for Life
International and Others, Amici Curiae); Lesbian and
Gay Equality
Project and Others v Minister of Home Affairs
and
Others
[2005] ZACC 19
;
2006 (1) SA 524
(CC);
2006 (3) BCLR 355
(CC);
Khosa
above n 80; and
Satchwell
v President of the Republic of South Africa
and
Another
[2002] ZACC 18
;
2002 (6) SA 1
(CC);
2002 (9) BCLR 986
(CC).
83
S
v
Manamela and Another (Director-General
of Justice intervening)
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC) at para 57.
84
See
[92]-[94] below.
85
National
Coalition
above n 73 at para 76.
86
Act
38 of 2005 (the Act).
87
Sections
151(2) and 152(1) of the Act.
88
Chirindza
and Others v Gauteng Department of Health and Social Welfare and
Others
, North Gauteng High Court, Pretoria, Case No. 47723/2010,
27 May 2011;
[2011] 3 All SA 625
(GNP) (High Court judgment).
89
In
terms of section 172(2)(a) of the Constitution.
90
Section
151(1) of the Act provides:
“
If, on evidence given by any
person on oath or affirmation before a presiding officer it appears
that a child who resides in the
area of the children’s court
concerned is in need of care and protection, the presiding officer
must order that the question
of whether the child is in need of care
and protection be referred to a designated social worker for an
investigation contemplated
in section 155(2).”
91
Section
151(2) of the Act.
92
Section
151(8) of the Act.
93
Id.
94
Section
152(1) of the Act provides:
“
A designated social worker or
a police official may remove a child and place the child in
temporary safe care without a court
order if there are reasonable
grounds for believing—
(a) that the child—
(i) is in need of care and protection; and
(ii) needs immediate emergency protection;
(b) that the delay in obtaining a court order for the
removal of the child and placing the child in temporary safe care
may jeopardise
the child’s safety and well-being; and
(c) that the removal of the child from his or her home
environment is the best way to secure that child’s safety and
well-being.”
95
Section
152(4) of the Act.
96
Sections
152(5)(a) and 152(6) of the Act.
97
Section
152(7) of the Act.
98
Section
151(7) of the Act.
99
Section
152(2) of the Act.
100
Section
152(3) of the Act.
101
Sections
151(7)(a), 152(2)(a) and 152(3)(a) of the Act.
102
Sections
151(7)(c), 152(2)(c) and 152(3)(c) of the Act.
103
Section
151(7)(b) of the Act.
104
Section
152(3)(b) of the Act.
105
Sections
152(2)(b) and 152(3)(d) of the Act.
106
Section
150(1).
107
Section
155(2).
108
Id.
109
This
also applies to children who are subject to proceedings in terms of
section 47 and section 154 of the Act.
110
Section
155(6), 155(7) and 155(8).
111
High
Court judgment above n 3 at para 14.
112
Id.
113
Id.
114
The
order of the High Court on remedy is set out later at [85] below
when remedy is considered.
115
Set
out in [65] above.
116
In
proceedings before Preller J in a different part of the application
heard by the High Court before the constitutionality issue
was
argued. That aspect of the case is not before us.
117
Chief
Lesapo v North West Agricultural Bank and Another
[1999] ZACC
16
;
2000 (1) SA 409
(CC);
1999 (12) BCLR 1420
(CC).
118
Section
172(1)(b) of the Constitution.
119
Constitutional
Court Rule 22 read with Supreme Court of Appeal Rules 17 and 18.
120
38
of 2005.
121
S
v Lawrence; S v Negal; S v Solberg
[1997] ZACC 11
;
1997 (4) SA
1176
(CC);
1997 (10) BCLR 1348
(CC) at para 107;
Merafong
Demarcation Forum and Others v President of the Republic of South
Africa and Others
[2008] ZACC 10
;
2008 (5) SA 171
(CC);
2008
(10) BCLR 969
(CC) at para 116;
Bernstein and Others v Bester and
Others
NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4)
BCLR 449
(CC) at paras 2 and 155; and
Khumalo and Others v
Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at para 45.
122
Section
172(1) of the Constitution provides:
“
When deciding a
constitutional matter within its power, a court—
(a) must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency;
and
(b) may make any order that is just and equitable,
including—
(i) an order limiting the retrospective effect of the
declaration of invalidity; and
(ii) an order suspending the declaration of invalidity
for any period and on any conditions, to allow the competent
authority
to correct the defect.”
123
The
full text of section 28 is quoted in [108] below.
124
South
Africa ratified the Convention in June 1995 and the Charter in
January 2000.
125
See
sections 231 and 232 of the Constitution and
Glenister v
President of the Republic of South Africa and Others
[2011] ZACC
6
;
2011 (3) SA 347
(CC);
2011 (7) BCLR 651
(CC) at paras 87-92.
126
United
Democratic Movement v President of the Republic of South Africa
and Others (African Christian Democratic Party and Others
Intervening; Institute for Democracy in South Africa and Another as

Amici Curiae) (No 2)
[2002] ZACC 21
;
2003 (1) SA 495
(CC);
2002
(11) BCLR 1179
(CC) at para 83 and
Johannesburg Metropolitan
Municipality v Gauteng Development Tribunal and Others
[2010]
ZACC 11
;
2010 (6) SA 182
(CC);
2010 (9) BCLR 859
(CC) at para 61.
127
Government
of the Republic of South Africa and Others v Grootboom and Others
[2000] ZACC 19
;
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) at
para 78.
128
Section
7(2) of the Constitution provides:
“
The state must respect,
protect, promote and fulfil the rights in the Bill of Rights.”
129
Above
n 7 at para 83.
130
Above
n 8.
131
Id
at para 78.
132
Prince
v President, Cape Law Society and Others
[2000] ZACC 28
;
2001
(2) SA 388
(CC);
2001 (2) BCLR 133
(CC) at para 22.

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