CCT55/11

[2012] ZACC 1

2012 (2) SA 208 (CC)

2012 (4) BCLR 329 (CC)

Yacoob J Majority judgment

Skweyiya J separate judgment

Jafta J dissenting judgment

11 January 2012

http://hdl.handle.net/20.500.12144/3647

The case concerns a confirmation of a declaration of constitutional invalidity made in C 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).

A referral for confirmation of the North Gauteng High Court’s order declaring sections 151 and 152 of the Children’s Act 38 of 2005 invalid. The section failed to provide for the automatic review of the removal of children from their family environment and their placement in temporary safe care by state officials. The majority held that while the provisions were aimed at catering for the best interests of children in accordance with section 28 of the Constitution, there were insufficient safeguards for instances where the police officer or social worker was wrong in removing a child from his or her family, or where the Children’s Court made an order for the removal of a child on incorrect evidence. It held that the appropriate remedy was to read into the sections the requirement that all removals under the act be reviewed by the Children’s Court soon after the removal has taken place. In a separate concurring judgment, it was also held that the impugned provisions were unconstitutional. The judgment reasoned that it was the removal provisions in the Children’s Act, and not the absence of automatic review, that unjustifiably limited the rights of the child. A dissenting judgment disagreed with the finding of constitutional invalidity on the basis that section 28 of the Constitution does not refer to automatic review. Section 28 cannot be interpreted to include parental care that is harmful or detrimental to the safety and well-being of a child. It followed that the impugned provisions are consistent with the Constitution. Majority: Yacoob J (Moseneke DCJ, Khampepe J, Nkabinde J and Van der Westhuizen J concurring). Separate Concurrence: Skweyiya J (Froneman J concurring). Dissent: Jafta J (Mogoeng CJ concurring).