Le Roux v Dey and Children's Rights Approaches to Judging

  • Meda Couzens University of Kwazulu-Natal
Keywords: children’s rights, best interests of the child, children’s rights approaches to judging

Abstract

The South African jurisprudence on the rights of children is vibrant and generally progressive, and is supported by an enabling constitutional and statutory framework. The majority decision in Le Roux v Dey 2011 3 SA 274 (CC), however, ignores the rights of children, and this is in stark contrast to some of the minority judgments in the same case. This contrast is surprising, considering that all of the judges applied the same legal framework. With reference to an emerging interest in defining children's rights approaches to judging, this article critically analyses the majority and minority judgments, and establishes their vulnerabilities and strengths as children's rights judgments. In the process, suggestions are made in relation to defining a children's rights approach to judging.

Author Biography

Meda Couzens, University of Kwazulu-Natal
Honorary Research Fellow, UKZN, Faculty of Law

References

Literature

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Case law

AD v DW (Centre for Child Law as Amicus Curiae; Department for Social Development as Intervening Party) 2008 3 SA 183 (CC)

Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others 2014 1 SA 604 (CC)

C and others v Department of Health and Social Development, Gauteng and Others 2012 2 SA 208 (CC)

Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009 6 SA 632 (CC)

Christian Education South Africa v Minister of Education 2000 10 BCLR 1051 (CC)

De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others 2003 12 BCLR 1333 (CC)

Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development and Others 2009 4 SA 222 (CC)

Freedom Stationery (Pty) Ltd v MEC for Education, Eastern Cape 2011 JOL 26927 (E)

J v National Director of Public Prosecutions and Another [2014] ZACC 13

Khumalo and Others v Holomisa 2002 8 BCLR 771 (CC)

Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 3 SA 274 (CC)

MEC for Education: KwaZulu-Natal and Others v Pillay 2008 1 SA 474 (CC)

S v M (Centre for Child Law as Amicus Curiae) 2008 3 SA 232 (CC)

Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another 2014 2 SA 168 (CC)

Van der Burg and Another v National Director of Public Prosecutions and Another 2012 2 SACR 331 (CC)

Legislation

Child Justice Act 75 of 2008

Children’s Act 38 of 2005

Constitution of the Republic of South Africa, 1996

International instruments

African Charter on the Rights and Welfare of the Child (1990)

UN Convention on the Rights of the Child (1989)

Internet sources

Milo and Palmer 2011 http://www.thedailymaverick.co.za/article/2011-03-17-analysis-schoolboy-scandals-and-defamation-in-sa-quo-vadis
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De Vos 2011 http://constitutionallyspeaking.co.za/is-the-reasonable-person-a-homophobic-prude/
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Abbreviations

SALJ South African Law Journal
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Published
2018-01-29
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