Realizing South African Children'S Basic Socio-Economic Claims Against Parents And The State: What Courts Can Achieve
* Professor, School of Law, University of the Witwatersrand, Johannesburg, South Africa. The author would like to thank the following members of the Department of Justice for providing information or directing me to the relevant offices: Ms C. Kok, Adv A. Raletjena, and Ms C. Van Vuuren
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Abstract |
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There are two systems for realizing South African children's basic socio-economic rights: the ‘private’ system for claiming maintenance from parents and the ‘public’ system of child welfare. This article compares the courts’ responses to problems in realizing children's rights in these two systems, focusing particularly on the emerging jurisprudence dealing with recalcitrant social welfare departments. Although courts have been willing to adopt innovative and severe measures against private maintenance defaulters, a similar willingness to issue drastic orders against malfunctioning government departments only arose once it became clear that they were deliberately ignoring court orders. Failures in both systems have prompted the courts to craft original, socially responsible legal rules and to limit the technical defences that prevent the realization of constitutional rights. In the welfare cases, courts have assumed sweeping remedial powers against government officials, relying on the claimants’ fundamental constitutional rights. The article concludes by setting out the limits of court intervention in ensuring effective realization of children's rights, especially for the most disadvantaged children.