This article critically evaluates important legislative reforms in South Africa, which, at the height of the AIDS pandemic, are intended to reduce the need for removing children from their families or communities. In a textual analysis of the 2005 Children's Act and the 2006 Children's Act Amendment Bill, the shift in focus from individual interventions to a developmental approach incorporating prevention and early intervention is explained. New family service and alternative care orders such as partial care, shared care, cluster care and support for child‐headed households are described. Although these creative solutions have considerable potential, there are gaps in the legislation that require supplementary wording. Drawing on the work of researchers and commentators, it is also shown that an inappropriate approach towards implementation has commenced, which harms rather than assists children. Recommendations are made for improving implementation that may be of relevance to other countries faced with similar challenges.
South Africa has utilised intermediaries to protect child witnesses and assist their communication in criminal proceedings in the magistrates' courts since 1993. is article examines some lessons to be learned from the South African experience. It provides an overview and assessment of attempts to overcome implementation problems and develop the legislation providing for intermediaries. It reviews contradictory solutions for improvement of the law recently put forward by the high court and constitutional court. Applying both the South African history and international standards, we argue that the high court offered a better way forward. We suggest some additional reforms which may also be relevant for advocates of the intermediary system in other jurisdictions.
Burying deceased family members in familial gravesites close to the homestead of the living has been a well-established practice in Southern Africa for many centuries. In terms of indigenous cultural and religious norms proximate burials are essential for enabling ancestors to commune amongst themselves and with their living descendants. In the colonial and apartheid eras many African communities lost ownership of their land. One of the consequences was that they needed permission from white landowners to continue with burials in established gravesites. In the democratic era the legislature sought to reintroduce a burial right for rural black land occupiers. Section 6(2)(dA) of the Extension of Security of Tenure Act 62 of 1997 allowed occupiers to assert a right of familial burial as against landowners, provided certain conditions were met. In Selomo v Doman 2014 JDR 0780 (LCC) Spilg J permitted a burial despite the fact that the applicant and deceased had not been resident near their family gravesite for many years. In our analysis of the judgment we suggest that the court’s attempts to find justification in the Extension of Security of Tenure Act 62 of 1997 and the Land Reform (Labour Tenants) Act 3 of 1996 were misconstrued. With proximate familial burials being essentially a matter of respect for dignity and indigenous culture, the court should have engaged in a deeper analysis of constitutional rights.
This article evaluates legislation developed in South Africa for the legal recognition and support of child-headed households. It provides an explanation and critical analysis of new statutory provisions. We show that in a developing country with AIDS pandemic challenges and limited resources such as South Africa reasons in favour of formal legal recognition outweigh those against. We demonstrate, however, that in order to meet the best interests standard it is essential to base recognition on household viability. Our analysis indicates that, although the South African provisions are groundbreaking and of considerable value as an example for other countries, there are some deficiencies which may compromise their effectiveness. Amendments and supplementary wording are proposed.
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