THE FOUNDATION FOR THE CHILD’S RIGHT TO LEGAL REPRESENTATION

One of the cardinal features of the United Nations Convention on the Rights of the Child which was adopted by the United Nations General Assembly in November 1989 and ratified by the South Africa Government in June 1995 is that of the child’s right to participate in all general matter affecting the child. This right is enshrined in Article 12 of the Convention on the Rights of the Child. Article 12 reads as follows :

(1) State Party shall assure to the child who is capable of forming his or her own views the rights to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

(2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national laws.

In contrast, the African Charter on the Rights and Welfare of the Child which was ratified by the South African Government on 7 January 2000 provides at Article 4 (2) :

In all judicial administrative proceedings affecting a child who is capable of communicating his or her own views, an opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to those proceedings and those views shall be taken into consideration by the relevant authority in accordance with the provisions of the appropriate law.

By virtue of their international obligations arising out of their ratification of the international treaties the drafters of the Constitution of the Republic of South Africa Act, 108 of 1996 had regard to many of the provisions contained within these Treaties for purposes of drafting Section 28 of the Constitution. Section 28 of the Constitution sets out the rights of the child while Section 28 (1)(h) codifies South Africa’s international obligation to ensure that the child has a right to representation, the subsection providing that the child shall have a right to have a legal practitioner assigned to it by the State, and at State expense, in civil proceedings affecting the child, if substantial injustice would otherwise result. The child’s rights to legal representation in the criminal arena is set out in Section 35 (3)(g) of the Constitution.

When interpreting the Bill of Rights, the Constitution provides in Section 39 (1) that a Court must promote the values that underlie an open and democratic society based on human dignity, equality, and freedom; it must consider international law and it may also consider foreign law. The Section further provides that when interpreting legislation and developing the common law and/or customary law, every court, tribunal, or forum must promote the spirit, purport, and objects of the Bill of Rights. Additionally, Section 233 of the Constitution provides that when interpreting legislation the Court must prefer a reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.

The primary differentiation between the United Nations Convention on the Rights of the Child with the African Children’s Charter is essentially that the CRC is restrictive in approach in that it provides that the views of the child are to be given due weight in accordance with the age and maturity of the child, whilst the African Children’s Charter merely provides that the child who is capable of communicating his or her own views shall be given an opportunity to do so. On the other hand, the CRC allows the child who is capable of expressing his or her views to do so in any matter affecting the child whereas the African Children’s Charter limits the communication of views to judicial and administrative proceedings. Of note, the South African Constitution limits the child’s right to have a legal practitioner assigned to the child to judicial proceedings where the child would be directly affected by the outcome. The primary distinguishing factor between the CRC, the African Children’s Charter, and the South African Constitution is that while the aforesaid International Treaties make provision for the child to participate (either directly or indirectly through a representative or appropriate body) in a judicial and administrative proceeding, the Constitution limits the participation to representation by a legal representative. Section 10 of the Children’s Act 38 of 2005 extends the right of participation by providing that

“Every child that is of such an age, maturity and stage of development to be able to participate in any matter concerning the child has the right to participate in an appropriate way and views expressed by the child must be given due consideration”

It is clear here from that the Children’s Act extends the right of participation to include all other forums, and it is further clear that participation outside of a traditional legal forum can be in the absence of a legal representative.