Too much of a good thing? Best interests of the child in South African jurisprudence

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.