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.
The Constitutional Court has developed a comprehensive child-friendly jurisprudence on the best interests of the child provision in s 28(2) of the Constitution There are, however, concerns that the concept of the best interests of the child is being over-used by the Court to the detriment of other relevant children's rights The Court has not explicitly defined the content of s 28(2) in the name of preserving its flexibility This article canvases the jurisprudence on the best interests of the child, and then it presents and analyses the use of s 28(2) by the Court in J v National Director of Public Prosecutions & Another (Childline South Africa & Others as amici curiae) and Raduvha v Minister of Safety and Security (Centre for Child Law as amicus curiae). These cases show that despite the declared reluctance of the Court to give formal clarity to the content and the scope of s 28(2) of the Constitution, it may be starting to systematise its approach to the application of this section In these cases, the Court spells out the legal content of the provision and uses it as a subsidiary tool in the absence of another legal provision relevant for the issue raised These cases contribute to the clarification of the best interests jurisprudence The further development of this good practice would be facilitated by the courts acknowledging the diversity of legal sources and functions of the best interests of the child concept An awareness of the complex nature of the best interests concept enables its principled legal development, without endangering the flexibility of its application on which the success of the concept rests
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