The development of the constitutional right to legal representation of children in civil matters

Abstract

Section 28(1)(h) of the Constitution of South Africa is a unique right that permits children to be represented in civil matters, either through a legal practitioner appointed the State or by a legal representative approached by the child or the parent. Article 12 of the United Nations Convention on the Rights of the Child (hereafter CRC) and Article 4(2) of the African Charter on the Rights and Welfare of the Child (ACRWC) have influenced the right for a child to have legal representation as a means to participate in any matter affecting the child. These international law instruments have influenced the enactment of the right under section 28(1)(h) of the Constitution, which in turn has allowed children to be pro-active in any matter that would affect their lives. In this dissertation, the origin of the right to legal representation in legislation is traced to the Divorce Act, followed by legislation that was later enacted to give effect to a proper implementation of the right in terms of section 28(1)(h). This dissertation aims to answer the central research question of how the right for a child to have a legal representation in civil matters has developed in South Africa, in assessing the response to this question relevant case law and legislation will be examined to determine the substance of the right. This dissertation finds that the right to legal representation for children in civil matters that concern them is a right that gives effect to a child’s right to participate although this right was previously used mostly in divorce matters, it has gravitated towards being enforced in all civil matters that would affect the child. This thesis links the right associated with child participation in matters affecting them to having a legal representative appointed to present the views and opinions of the child in matters affecting them. It underscores that there are two linked rights within section 28(1)(h). These are that a child has an automatic right to a legal representative in matters affecting them and that they may also acquire such a legal representation at state expense when substantial injustice would otherwise occur. The dissertation concludes that this right in the Constitution, read within the framework of international law instruments, and together with South African legislation and interpretation by the courts, has been made effective.