scholarly journals DAMAGES FOR DEPRIVATION OF PARENTAL CARE: INITIATING A GROUNDBREAKING NEW REMEDY FOR CHILDREN M v Minister of Police 2013 (5) SA 622 (GNP)

Obiter ◽  
2015 ◽  
Vol 36 (1) ◽  
Author(s):  
Judy Parker ◽  
F Noel Zaal
Keyword(s):  
South Africa ◽  
Parental Care ◽  
South African ◽  
Family Care ◽  
Skills Training ◽  
Children's Rights ◽  
Third Party ◽  
Children’S Rights ◽  
Full Potential ◽  
The Law

In South Africa, as in many other jurisdictions, it is well established that where a parent is unlawfully and culpably killed by a third party any surviving children may claim for loss of support. Detailed rules on damages available in terms of the common law loss of support action have developed over a long period of time. However, the action has generally remained subject to a major limitation. The loss which can be claimed for must be pecuniary or material. This is in accordance with the principle that only patrimonial damages may be awarded in terms of the loss of support action. Thus, damages which can be claimed by children unlawfully deprived of a parent are restricted to compensation for loss of future maintenance they will no longer receive. In reality, the harm and deprivation children experience after death of a parent tend to be much more than what has been recognized as suitable for compensation by means of patrimonial damages. Particularly where there was a close relationship, bereavement may cause long-term emotional harm. The child may also lose out on important life-skills training and guidance that the parent would foreseeably have provided for many years until the child reached maturity. Without such guidance, the child may never achieve his or her full potential. So the child may be significantly disadvantaged even beyond maturity. Unfortunately, in the face of centuries of entrenchment of the law, our courts have been unable to extend the loss of support action to fully cover all aspects of a deprivation of nurturing. They have thus not been able to address some of the most severe dimensions of harm typically suffered when children are wrongfully deprived of parents. South Africa has not been alone in this. Such claims are blocked by the Fatal Accidents Act 1976 in England, where damages can only be claimed for pecuniary loss. Although this was criticized by the Court in, for example, Hay & Anor v Hughes, there appears currently to be no attempt to amend the Act. Similar legislation in Australian states and territories also does not make provision for claims by children for non-pecuniary damages. This is with the exception of the Northern Territory of Australia where the Compensation (Fatal Injuries) Act allows a child to claim damages for loss of care and guidance of a parent wrongfully killed. Fortunately, in the democratic era South Africa has benefited from an infusion of modern, children’s rights-based legislation. Some of the new statutory provisions allow for a reconceptualization of the law governing parent-child relationships. Of foundational importance is the declaration that “every child has the right − … to family care or parental care …” in section 28(1)(b) of the Republic of South Africa Constitution Act, 1996. As will be further discussed below, the actual content of parental care has been to some extent clarified in section 15 of the Children's Act 38 of 2005 (the Act). The references to parental care in modern South African legislation provide scope for judges to develop the detail of the law in accordance with a children’s-rights approach. In M v Minister of Police (M) Mohle J grasped an excellent opportunity to do so and opened the way for future compensation of children for non-material aspects of parental loss. He did this with creative and ground-breaking interpretations of section 28(1)(b) of the Constitution and section 15 of the Act.  In our discussion we provide an analysis and appreciation of the judgment. We show that, whilst M is important for its initiation of a new remedy from which many children can benefit in the future, it is in some respects less than perfectly clear, and therefore leaves important aspects for further development. We consider the implications of the judgment and how South African law needs to be further evolved if children unlawfully deprived of their parents are to be fully compensated for resulting harm.

A South African Perspective of Grade 9 Learners’ Experiences of Children’s Rights

2018 ◽  
Vol 26 (2) ◽  
pp. 278-294
Author(s):  
Lucia Munongi ◽  
Jace Pillay
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Content Analysis ◽  
Secondary Schools ◽  
South African ◽  
Children's Rights ◽  
Children’S Rights ◽  
African Perspective ◽  
Radical Approach

This study aimed to determine children’s experiences of their rights. The sample consisted of 185 Grade 9 pupils (females = 95; males = 90) randomly sampled from 13 secondary schools from Johannesburg, South Africa, from a previous study. The participants were requested to write their responses to an open-ended question: ‘What do you think of children’s rights in South Africa?’ The data were analysed using content analysis since the data from the open-ended question was qualitative in nature. Results indicated that children were aware that they have rights, and that adults were still violating them. Based on the findings and a human rights-basedframework, several recommendations were made, such as, the need to adopt a more radical approach when dealing with children’s rights and the need to encourage schools and families to develop a culture of respecting children’s rights.

The Rights of Children: A New Agenda For Practical Theology in South Africa

2006 ◽  
Vol 13 (3-4) ◽  
pp. 314-340 ◽  
Author(s):  
Hannelie Yates ◽  
Ignatius Swart
Keyword(s):  
South Africa ◽  
South African ◽  
Practical Theology ◽  
Children's Rights ◽  
Children’S Rights ◽  
African Society ◽  
South African Society ◽  
Active Involvement ◽  
Complementary Role ◽  
Practical Theological

AbstractThe aim of this article is to give prominence to the rights of children as a new agenda for Practical Theology in South Africa. Adopting a distinctly contextual approach, the article takes a critical look at the problematic situation of children in present-day South Africa and then focuses attention on the emergence of a children's rights agenda, both internationally and in South African society. A discussion of these aspects leads the authors to address pertinently the issue of Christian theology's complementary role in the children's rights agenda, which, however, is problematised in the light of theology's one-sided and limited involvement thus far in the issue of children. It is argued that a practical theological paradigm – in which a praxis of liberation, change and transformation is of prime importance – should reflect an active involvement in the children's rights agenda. In the light of the special realities of South African society, the importance of meeting distinct contextual and hermeneutical challenges is stated as condition for an effective practical theological involvement in the problematics of the rights of children.

scholarly journals Kontribusi forum anak daerah Kepahiang provinsi Bengkulu (FADEK) dalam perlindungan hak anak

2020 ◽  
pp. 207-224
Author(s):  
Eka Aulia Rizki ◽  
Idi Warsah ◽  
Guntur Putra Jaya
Keyword(s):  
Parental Care ◽  
Children's Rights ◽  
Qualitative Approach ◽  
Customary Law ◽  
Children’S Rights ◽  
Data Presentation ◽  
The Law ◽  
The Government ◽  
Selection Of

This study aimed to determine the contribution of Kepahiang Regional Children's Forum (FADEK) program in an effort to protect children's rights in that region. This study used a qualitative approach. The data were collected through observation, interviews and documentation. After the data were collected, they were further analyzed using Miles, Haberman, and Saldana’s model comprising the selection of data, presentation of data and drawing conclusions. This study found the conclusion that the establishment of this forum departed from Kepahiang youth’s concerns on the lack of parental care for children's rights, so this forum had the main mission to minimize the cases children experienced from both their surrounding people and other people. The contributions of this forum were: For the government, this forum made Kepahiang a city worthy of children by the Minister of Child and Women's Protection (PPA) in 2019. For the forum members, this forum trained them to become pioneers in struggling for their rights and peers’. For children, this forum provided assistance to children who were coping with the acts violating both customary law and the law on other criminal acts.

UN-BLURRING THE MYTHS AND REALITIES OF WOMEN AND CHILDREN’S RIGHTS IN SOUTH AFRICA

2017 ◽  
Vol 14 (2) ◽  
pp. 109-120
Author(s):  
T N Sithole ◽  
Kgothatso B Shai
Keyword(s):  
South Africa ◽  
Children's Rights ◽  
Theory And Practice ◽  
Children’S Rights ◽  
Vulnerable Groups ◽  
Great Awareness ◽  
Policy Theory ◽  
Rights Of The Child ◽  
The Status ◽  
Customary Practices

Awareness of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW 1979) and the Convention on the Rights of the Child (CRC 1989) is relatively high within academic and political circles in South Africa and elsewhere around the world. In South Africa, this can be ascribed mainly to the powerful women’s lobby movements represented in government and academic sectors. Women and children’s issues have been especially highlighted in South Africa over the last few years. In this process, the aforementioned two international human rights instruments have proved very useful. There is a gender desk in each national department. The Office on the Status of Women and the Office on Child Rights have been established within the Office of the President, indicating the importance attached to these institutions. These offices are responsible for co-ordinating governmental efforts towards the promotion and protection of women and children’s rights respectively, including the two relevant treaties. Furthermore, there is also a great awareness amongst non-Governmental Organisations (NGOs) in respect of CEDAW and CRC. This can be ascribed mainly to the fact that there is a very strong women’s NGO lobby and NGOs are actively committed to the promotion of children’s rights. Women are increasingly vocal and active within the politics of South Africa, but the weight of customary practices remains heavy. The foregoing is evident of the widening gap between policy theory and practice in the fraternity of vulnerable groups – children and women in particular.

South African Animal Legislation and Marxist Philosophy of Law

Cultura ◽  
2019 ◽  
Vol 16 (1) ◽  
pp. 23-28
Author(s):  
Luis CORDEIRO-RODRIGUES
Keyword(s):  
South Africa ◽  
South African ◽  
Social Reality ◽  
Marxist Philosophy ◽  
Philosophy Of Law ◽  
Berlin Wall ◽  
Animal Farming ◽  
Animal Law ◽  
The Law ◽  
Farming Industry

Marxist Philosophy as an explanation of social reality has, since the fall of the Berlin Wall, been largely neglected. However, some philosophers have contended that it may still be relevant to explain today’s social reality. In this article, I wish to demonstrate precisely that Marxist philosophy can be relevant to understand social reality. To carry out this task, I show that Marxist philosophy of law can offer a sound explanation of Animal law in South Africa. My argument is that South African law is a superstructure that reinforces the power of the animal farming industry in South Africa. That is, the hidden purpose of the law is to benefit the industry. In order to argue for this, I present two sets of arguments. The first set argues that the law facilitates the functioning of the animal farming industry. In the second set of arguments I contend that the law socialises individuals into approving the methods of slaughtering by the animal farming industry.

Taking Children’s Human Rights Seriously

2020 ◽  
pp. 48-69
Author(s):  
Michael Freeman
Keyword(s):  
Human Rights ◽  
Children's Rights ◽  
Popular Media ◽  
Children’S Rights ◽  
Ronald Dworkin ◽  
Philosophical Discussion ◽  
Persuasive Argument ◽  
The Law ◽  
Deficit View

Despite the development of the children’s rights movement, human rights scholarship continues to overlook the rights of children. Even those like Ronald Dworkin, who proclaim the need to take rights seriously, are curiously silent, even ambivalent, when it comes to children. This inattention often forces advocates of children’s rights to the margins of human rights scholarship. In the few places where serious philosophical discussion of children’s rights does take place, the analysis intends to diminish the value of rights for children. These critics are not malevolent, and typically want what is best for children, but they do not think it can be accomplished through a children’s rights agenda. This chapter lays out a persuasive argument for a children’s rights agenda, or, for taking children’s rights seriously. Drawing from philosophy, history, literature, popular media, and of course the law, this chapter argues against the conventional deficit view underlying most arguments against the recognition of children’s rights and makes a case for the importance of children’s rights where rights are the currency in use.

scholarly journals The CRC comes of age: assessing progress in meeting the rights of children in custody in Northern Ireland

2020 ◽  
Vol 62 (2) ◽  
pp. 217-234
Author(s):  
Linda Moore
Keyword(s):  
Northern Ireland ◽  
Juvenile Justice ◽  
21St Century ◽  
Social Economic ◽  
Children's Rights ◽  
Political Context ◽  
The State ◽  
Children’S Rights ◽  
Primary Research ◽  
The Law

This article focuses on the extent to which Convention rights are complied with regarding the treatment of children in conflict with the law in Northern Ireland, and in particular the rights of incarcerated children. Relevant children’s rights instruments and principles are identified to establish the benchmarks for this discussion. There follows discussion of the particular social, economic and political context which impacts upon the lives of children in conflict with the law in Northern Ireland. The legislative context for the detention of children in custody in Northern Ireland is explored, and the regimes in the Juvenile Justice Centre (JJC) for Northern Ireland and Hydebank Wood Young Offenders Centre (YOC) are assessed for compliance with children’s rights standards. Primary research conducted by the author and her colleagues with children in custody in Northern Ireland 2 and recent inspection and research reports form the basis for the analysis of the state of children’s rights in custody in Northern Ireland in the 21st century.

scholarly journals The Enforcement of the Payment of Lobolo and its Impact On Children’s Rights in South Africa

2017 ◽  
Vol 16 (1) ◽  
pp. 404
Author(s):  
Nqobizwe Mvelo Ngema
Keyword(s):  
South Africa ◽  
Family Violence ◽  
Children's Rights ◽  
Main Issue ◽  
Children’S Rights ◽  
Best Interests ◽  
Current Form ◽  
Maternal Grandfather ◽  
Custody Of Children

Various communities in South Africa practise the custom of lobolo (payment in kind or cash by a prospective husband or the head of his family to the head of the prospective wife’s family in consideration of a customary marriage). These communities may be divided into two groups, those practicing theleka (the withholding of a wife by her father or guardian from her husband to coerce him to pay the outstanding lobolo) and those that do not. In the communities practising theleka the amount of lobolo is not fixed and the father or guardian of the wife may from time to time theleka the wife and demand one to three head of cattle from his son-in-law. The wife and her children, if there are any, may be held by their maternal grandfather until the payment of lobolo has been met. The main issue this article examines is whether the custom of theleka impacts on the custody of children or not. It also examines the concept of the best interests of the child and finds that theleka custom in its current form does impact on the custody of the child and conflicts with the child’s best interests. The article suggests that theleka custom needs to be developed to conform to the Constitution. It also examines whether or not the custom of theleka constitutes abduction and family violence. The writer submits that it does not constitute abduction and family violence and advocates that theleka custom be allowed to continue.

scholarly journals SOCIAL MEDIA AND THE ACTIO INJURIARIUM IN SOUTH AFRICA – AN EXPLORATION OF NEW CHALLENGES IN THE ONLINE ERA

Obiter ◽  
2014 ◽  
Author(s):  
Priya P Singh
Keyword(s):  
South Africa ◽  
Social Media ◽  
South African ◽  
News Media ◽  
Rapid Rise ◽  
New Challenges ◽  
The Law ◽  
Use Of Social Media ◽  
Alternative Remedies

The rapid rise in the use of social media networking sites in South Africa has posed new challenges to our courts. The law of defamation and privacy, which has long been considered well established, is now facing new demands on its boundaries because of the unique characteristics of social media in the online era.This note will discuss and critique three recent cases individually, concerning issues arising from the use of Facebook (a social media website) and the approach of the courts in extending the traditional law to the new demands of social media interaction.The aim of the note is to evaluate: the considerations which should apply to the granting of an interdict in respect of comments posted on Facebook, especially where alternative remedies are available; whether social media should be treated differently from electronic news media; how to establish ownership of a Facebook profile where such ownership is disputed; liability for anonymous defamatory posts on an individual’s Facebook profile; whether an individual can be liable for defamatory posts not made by himself personally, but in which he has been tagged; whether comments posed as questions can be regarded as defamatory; and the role played by apologies in claims for damages in defamation.The note concludes by discussing how South African courts have extended the traditional principles governing the actio injuriarium action in South African law – to the new challenges posed by the rise in popularity of social media networking sites.

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