Abstract:
The South African Constitutional Court is often lauded for its application of
best interests in its judgments. This article acknowledges the positive
aspects of the Court’s approach, especially in the earlier cases, but also
poses a question – does the Court go too far in applying best interests, in
situations where an equally or more appropriate right in the Bill of Rights
is available – or where a right can be more fully interpreted through
recourse to international law? Two recent cases are analysed to
demonstrate the concern. It is argued that the most rights-based approach
is achieved with the Court pronounces on a clear rights violation, either in
the Constitution or the Convention, and then use best interests to either
weigh rights, justify a derogation of a right, to fill in any normative gaps
where a particular right is not clearly enunciated in the Constitution or
international law, or where it is necessary to show that the impact of an
impugned provision would impact on children more heavily than on
adults. It is concluded that the flexibility of best interests is useful, but it
should not be used so ubiquitously that it prevents normative development
of children’s rights.
