The Supreme Court of Appeal of South Africa
8 October 2015
Article 12: The child’s opinion
Article 3: Best interests of the child
Other international provisions:
African Charter on the Rights and Welfare of the Child (ACRWC), Article 4(2): child’s right to be heard
South African Constitution, section 28(1)(h): every child has a right to legal representation at state expense in civil proceedings affecting a child if substantial injustice would otherwise result
Children’s Act 38 of 2005, section 10 (right to participate in an appropriate way in any matter concerning the child); section 14 (access to court for protection and enforcement of children’s rights); and section 15 (enforcement of fundamental rights)
Thirty-seven English-speaking children were placed in Hoerskool Fochville, an Afrikaans single-medium school, by the Department of Basic Education due to a shortage of spaces available in English schools in the area. Hoerskool Fochville opposed the placement by the Department and brought their complaint to court. The Centre for Child Law (CCL) and Legal Resources Centre (LRC) intervened to represent the interests of the children to ensure their views would be heard in court. The school opposed CCL’s intervention application. As part of the process, CCL and LRC requested that the children fill in questionnaires about their experiences at the school. The responses were to be kept anonymous. The school demanded access to the questionnaires, which CCL refused. The matter was brought before the Johannesburg High Court, which found against CCL and ordered CCL to grant access to the school to inspect the original questionnaires and to pay court expenses. CCL and LRC appealed the decision to the Supreme Court of Appeal.
Issue and resolution:
Right to be heard; best interests of the child. The Court decided that the questionnaires should not be disclosed because it was not in the children’s best interests.
The right of children to representation separate from their parents flows from their right to participate in all matters that affect them, which is widely recognised in international law and forms part of South African law. In every weighing of rights and interests and any value judgement relating to whether the questionnaires should be produced, the best interests of the children would have to be the paramount consideration. There was concern that the children may suffer prejudice should they be identified as making statements in the questionnaires. The school failed to show why their interests in investigating the identities of the children in order to answer the allegations should outweigh the interests of the children in not having their identities disclosed. Therefore, the lower court’s decision was reversed.
Excerpt citing CRC and other relevant human rights
 In striking the appropriate balance in a case of this nature adequate weight must be accorded to the interests of the children. In that regard, a useful starting point is an appreciation that the right of children to representation separate from their parents, flows from their right to participate in all matters that affect them. That is a right which is widely recognised in international law and forms part of South African law. Article 12 of the United Nations Convention on the Rights of the Child, 1989 (UNCRC) entrenches the child’s right to participate. It provides: ‘
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.’
Closer to home, in terms of the African Charter on the Rights and Welfare of the Child, 1990 (ACRWC) the following obligation is placed on the States in Article 4(2):
‘In all judicial or administrative proceedings affecting a child who is capable of communicating his [or] her own views, an opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate law.’
 The child’s right to have separate legal representation during legal proceedings in a matter such as this is thus clearly contemplated by those provisions. Both specifically envisage that the child may participate ‘through a representative’. The ACRWC goes further than the UNCRC in stating that the child may participate through an ‘impartial representative as a party to the proceedings’. The child’s right to be heard and to have his or her views taken into account, in terms of the UNCRC and ACRWC, has been recognised as forming part of South African law…
[FN18] International law also affirms the ‘best interests’ principle and many have subsequently incorporated it into their constitutions or child and family legislation. Article 3(1) of the UNCRC requires that: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ Similar pronouncements are found in art 4(1) of the ACRWC…
Before the decision of the Supreme Court of Appeal had been issued, a settlement agreement had been reached between the school and the Department of Basic Education. A new English school would be built in Fochville and all except one child would be allowed to complete their education at that school. There was initially a question of mootness after the settlement. However, Judge Sutherland J of the Supreme Court of Appeal decided that there was a live issue and granted the appeal.
CRIN believes this decision is consistent with the CRC. In reaching its decision the Court applied Article 12, which provides that children have a right to be heard in any judicial proceedings affecting them, either directly or through a representative, and Article 3, which provides that in all actions concerning children, the best interests of the child shall be a primary consideration.
(156/2015)  ZASCA 155 (8 October 2015)
Link to full judgement: http://www.justice.gov.za/sca/judgments/sca_2015/sca2015-155.pdf