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Sandra Burman

excerpted from: Sandra Burman, THE BEST INTERESTS OF THE SOUTH AFRICAN CHILD, 17 International Journal of Law, Policy and the Family 28-40 (April, 2003).

In common with a large number of other countries around the world, South Africa has over the last few decades adopted the standard of 'the best interests of the child' as the measure for all legal decisions on children made within the Roman-Dutch legal system, the common law of the country. The standard is also entrenched in the Constitution that was brought into effect after the 1994 elections, which heralded the new South Africa, and is a key part of the Convention on the Rights of the Child, ratified by South Africa on 16 June 1995. It is also part of the African Charter on the Rights and Welfare of the Child, which was ratified on 7 January 2000 and provides that '[i]n all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration'. However it is arguable that the concepts inherent in the standard are foreign to a large section of the South African population - an import from an alien world. Politically, its adoption was probably inevitable, but a basic clash of concepts results, creating problems that should not be ignored. This article is not intended to be a discussion of the merits of culture versus interests or rights as norms, but rather an outline of what is happening or is likely to happen in South Africa as the two come into conflict over issues of custody and similar matters.

Further, given that the standard has been imported and is ostensibly suited to the social mores of the rest of the population, it must be asked whether its operation is similar to that in other countries that have adopted it. A major determinant of how effectively it operates is the range of possibilities available to the courts in deciding on what the best interests of the child are in any given situation. This article does not purport to review the use of the standard in the case and statute law of the country - that has been done by various other writers, eg Sloth-Nielsen (1995), Palmer (1996) and Clark (1998, 2000) - but to look at the wider situation in which it is applied. The article therefore outlines the effects on the operation of the standard of a host of factors in South Africa, particularly in custody cases, and briefly discusses the consequences.

Before embarking on these discussions, however, it is necessary to paint in the relevant basics of the legal background.


A. Custody on Divorce

Under the common law of South Africa, divorces may be obtained either in the High Court or, since a Pilot Project Family Court was initiated in five centres in the 1990s, in one of the five Pilot Project courts. Judges preside in the High Court, and Presiding Officers, graded as Regional Magistrates, in the Family Court. By statute, the papers for all High Court divorce cases involving minors are reviewed by the Family Advocate's Office, where legally qualified family advocates at each seat of the High Court are assisted by social workers appointed as family counsellors. Originally family advocates reviewed only High Court divorce papers, but since November 2001 it has become obligatory for them to review Family Court papers too. Even before that date it had become increasingly common for at least some of the Family Courts to refer the papers to them (Burman et al, 2000; Glasser, 2002). The family advocate reports to the judicial officer on each case (though most commonly merely approving the settlement arrived at by the parties), and the recommendation is usually accepted. However, most cases where lawyers are involved (almost all in the High Court but only some 20 per cent in the Family Court, in the Western Cape at least ) are settled in advance in the lawyers' offices, sometimes after lengthy and prolonged bargaining, and subsequently merely endorsed by the court. Lawyers may therefore play a crucial role in shaping the custody agreement. In the relatively rare cases where the disputing parties have the will and finances to employ psychologists or private social workers (neither of which are available through the state), these may also play an important part in the final custody decision. Research by the Centre for Socio-Legal Research has indicated that the process is much influenced by questionable assumptions by the professionals as to what the family advocates and judges will consider to be the child's best interests (Burman and McLennan, 1995; Burman et al, 2000).

B. Custody Decisions where No Divorce is Involved

The allocation of custody usually arises on divorce, but the High Court has an inherent jurisdiction as the upper guardian of minors and, in appropriate circumstances, will intervene and allocate guardianship or custody to one parent only, or even to a third party. In addition, under the Child Care Act 74 of 1983, and the Criminal Procedure Act 51 of 1977, a child may be placed in an institution or in the custody of a third party. Such non-parental custody is potentially becoming increasingly important in the light of the HIV/AIDS epidemic, as shown below.


South Africa has a very varied population. There are 11 official languages and at least 19 religious affiliations to which between 1 and 10.7 per cent of the population adhere, as well as others with smaller numbers of followers. Moreover, even today the population is 'racially' categorized into the so-called 'population groups' (for affirmative action purposes) - African (77 per cent); white (11 per cent); coloured (9 per cent); and Indian/Asian (3 per cent). Among the Africans there are nine major linguistic groups, many of whose members still retain allegiances to their chiefs. In addition, waves of refugees from the rest of Africa are arriving in ever-increasing numbers, fleeing war or economic deprivation. With the abolition of apartheid legislation on inter-racial marriage and segregated housing for each population group, increasing numbers of marriages are taking place across these group boundaries, raising a host of problems on divorce from the clash between the different expectations of the parties and their families.

In addition, even within ostensibly relatively homogeneous groups, wide variations in life styles and attitudes exist between those who urbanized many decades ago and those newly arrived from the rural areas, quite apart from the 46 per cent who are still resident in the rural areas. Adherence to African customary law is probably the most relevant aspect of this, with some living according to the law of their group, a small proportion entirely according to Roman-Dutch and statutory law, and most according to a mixture of both systems. Thus, for example, the payment of bridewealth is still observed by the majority, even those who live most of their lives outside the ambit of customary law, and has considerable implications for attitudes to the children of the marriage (Burman, 1984(a); Burman and Van der Werff, 1993).

South Africa recognizes African customary law as a parallel system of law to the civil law but with limited application only to those classified as African whose lifestyle brings them under its operation. It embraces a view of society different from that of the civil law, being based on the group rather than on the individual. Thus in customary law the interests of the extended family override those of individual members, potentially setting it on a collision course with the civil law on a number of issues. The uneasy co-existence of the two systems has been further complicated by recent legislation that for the first time requires customary law marriages to be dissolved by civil law courts, not just family agreements as in the past. In addition, as mentioned above, the international instruments which have been ratified and the 1996 Constitution are based on the rights of the individual, not the family group. Little has yet come before the courts involving custody clashes between the two systems, but the best interests of the child standard is potentially one focus of such a collision. As the above legislation is so recent, it has not yet been possible to study its effects on customary law divorces, but it seems likely to be a major cause of confusion in so far as it is not simply ignored.

In the case of Muslim and Hindu marriages, the civil law does not yet afford recognition of the religious marriage, although a couple may bring their union within the ambit of the civil law by making a second, civil law marriage. This second marriage may be conducted by a magistrate or by an imam or Hindu priest who has been appointed as a marriage officer, but, even where the celebrant is also a religious official, the marriage is a civil law marriage, not one by religious law. Furthermore, before becoming a marriage officer, it is necessary to pass an examination and swear an oath to abide by the laws of the state, which do not sanction polygamous or potentially polygamous marriages other than those under customary law. This has the result of excluding most Muslim imams and Hindu priests, among others. Thus, most people who choose to be married only by these religious officials are not legally married according to state law. While most such couples would resort to a religious divorce by their own authorities, should one party appeal to the courts (as upper guardian of children) for a custody order, the standard of the best interests of the child would be applied, irrespective of the values of the religions involved. Both systems give priority to the rights of certain family members over the interests of the child, again constituting the same type of clash of concepts outlined above with regard to customary law, and with practical problems resulting. Thus, for example, Pearl (1989) explains that:

Islamic law has developed a series of norms whereby the responsibility for the early life of a child is that of the mother and the later life that of the father. The ages where physical custody, or hadana, of the mother is transferred to guardianship, or wilaya, of the father will vary from school to school, but the principle remains the same in all Islamic schools.

In contrast, as Pearl points out, the Convention emphasizes equality of parenting as a norm.

The essence of such clashes is that they represent different worldviews that are essentially irreconcilable. It is true that 'clever lawyers' may find ways ostensibly to reconcile the systems. The concept of the best interests of the child does not stipulate what constitutes the most important elements in those interests, although various legal systems have developed lists of factors they regard as worthy of consideration. Nor does the concept itself imply how such factors should be weighted in deciding on custody allocation. It is not, for example, inherent in the concept that greater weight should be placed on the ability of one parent to provide better than the other for a child's creature comforts, as against the ability of the second parent to provide better for the child's emotional needs. The weighting of the various psycho-legal shopping lists of criteria available from legislative and academic sources are all affected by the social and political ideas of the time. Thus, the application of the 'universal' concept of 'the best interests of the child' could, on the same facts, conceivably produce opposite custody allocations in different societies or in the same society at different periods. Given this latitude, sleight of hand may produce a result acceptable to both parties. It may be argued, for example, that it is in the child's best interests to receive the emotional support of his customary law family group according to that society's rules, with the male head of that family duly awarded custody - an outcome presumably acceptable to the family. But it begs the question of how the customary law family sees the issue. For them, the issue is not what is in the child's best interests but what is in the extended family's best interests, and if the child suffers for the family, so be it. And, as this is a head-on clash of values, insoluble clashes over custody decisions do seem to be inevitable some of the time, however clever the lawyers and judges.

There has been much writing on the issue of reconciling culture and human rights (eg a special two-part issue of The International Journal of Law and the Family, 8(1) and (2), 1994; Alston, 1994; Douglas and Sebba, 1998; Ncube, 1998). This article does not set out to consider whether that is possible or even desirable in the abstract. However, as apartheid showed, when part of the population mistrusts the values of the judiciary and the laws, it ignores the courts. South Africa had, and still has, a plethora of informal courts, unrecognized but with enforcement provided by the community (Burman and Sch�rf, 1990). It therefore seems likely that if the state courts, in attempting to apply an interpretation of the best interests of the child, come to decisions that are foreign to the parties' way of thinking, people will take custody and similar disputes elsewhere. Such cases may end up either with the parties' own customary or religious leaders, or in the murky area that exists in every society where might is right, the child going to whoever can seize and hold him or her.


There is, however, a set of difficulties with applying the standard of the best interests of the child in South Africa that are of a different order of problem. They are not problems involving inherent incompatibility with the standard but rather social problems that limit all or most of the possibilities that might normally be considered when making custody decisions according to the best interests of the child. Many similar limitations are present in most countries of the world to varying degrees, particularly in sub-Saharan Africa, but the effect of their extent and concentration in South Africa at present makes the operation of the best interests standard almost unrecognizable in many cases. They are outlined separately below but interact with each other in numerous ways.

A. Economic Problems

The disparity in GNP between the handful of First World countries and the rest of the world is very great. South Africa falls into the latter group, although it is not among the world's poorest countries. However, wealth is more unevenly distributed than in most countries, resulting in a small percentage of the population enjoying a very high standard of living, while the remainder lives on or below the poverty line. Chronic unemployment rates are high at over 30 per cent, and over 40 per cent for women, with the rate being highest for rural African women. For 2001 the figure being cited was that 45 per cent of the working age population was looking for work or had given up looking. There is a great shortfall in housing: by the beginning of 2000 South Africa's housing shortage was estimated at between three and four million units, with the most optimistic forecast of meeting this backlog estimating that it might be addressed in 15 to 20 years. Shanty towns extend in vast swathes round the cities. Further, the entire governmental system is drastically short of funds for the schemes necessary to rectify the imbalances left by apartheid, and lack of funds also reduces staff training to deal with the complexities of administration, with sometimes disastrous results. No sections of the government are feeling the effects of this more than the Departments of Justice and of Social Development. All these features have a considerable impact on the application of the doctrine of the best interests of the child.

In the first place, given the amount of unemployment, the low level of women's earnings, and the great dearth of housing, at divorce many parents, particularly women, are in no position to contest custody at all, and African women have always been particularly affected (Burman, 1984(b); Burman and Fuchs, 1990). The limited welfare system provides for a very small grant for children under the age of 7, but that, and free clinic treatment, is all the state aid available for children living with their parents, other than for profoundly mentally or physically disabled children. Schooling is not free and school feeding schemes fairly rare. On divorce, necessity frequently dictates the custodian, making for certainty of dispute outcome without any court fight. However, interviews with relevant officials have indicated that some place a higher value on the parental bond than even acute physical deprivation for the children. Where custody is disputed, it may be awarded on such grounds to, for example, mothers living in leaking shacks. It may therefore be seen that the standard of the child's best interests is not making for certainty in the application of the law, since courts do not necessarily apply the same criteria.

Lack of national funding also has a major effect on those cases where the court decides a child's best interests would be best served by placing him or her in non-familial care. Foster grants are small, limiting the number of caregivers willing to take in non-familial children. Children's homes are few and very overcrowded, limiting the court's options. Frequently children must perforce be left in totally unsuitable situations because of lack of alternatives.

B. Drink, Drugs, Violence, and Prison Populations

Many countries have problems with drink and drugs users, but in South Africa both problems occur very widely, particularly that of drink, partly for historical reasons. In the Cape the wine farmers traditionally paid their labourers partly with drink, usually distributed throughout the day - known as the dop system. As a result, the labourers and their families have a long history of heavy dependency on drink, as can be seen from such factors as the prevalence of foetal alcohol syndrome among their children, even though efforts are now being made to stamp out the dop. In other parts of the country in the early colonial period the colonists' alcohol became very popular in many areas, being stronger than that commonly brewed by the indigenous population for normal consumption, and was used in part payment for trade on occasion. Various other factors subsequently affected the widespread alcoholism now found in many sectors of the population.

Marihuana (known as dagga) grows locally but hard drugs have recently become a major problem as South Africa's trade isolation ceased with the end of apartheid and drugs flooded into the country. Together with alcoholism, they have become an important factor in widespread domestic violence, which in turn reflects a generally violent society. This latter partly explains the large numbers in jail, although this figure has been considerably swelled by the current breakdown in the court system, resulting in a disproportionate number of awaiting-trial prisoners.

One consequence of this combination of factors is the far from unknown situation where a court, deciding on child custody, is faced with the unsuitability of both parents as custodians, due to alcoholism, drug use, or confinement in jail. However, the lack of children's homes and shortage of non-familial foster carers makes something of a mockery of the standard of the best interests of the child in such cases (Burman and McLennan, 1995).


However, the biggest limitation on the range of possibilities in deciding on a child's best interests in custody and related cases is still developing. UNAIDS estimated in its global summary of the worldwide situation in December 2001 that 40 million people were living with HIV/AIDS, with 28.1 million in Sub-Saharan Africa. South Africa has one of the fastest growing epidemics in the world, with approximately 4.7 million South Africans (one-in-nine of the population) infected with HIV at the end of 2000. The highest numbers are concentrated in rural KwaZulu-Natal Province. Younger people are the most severely affected, with about 60 per cent of all adults who acquire HIV becoming infected before they turn 25. Young women are particularly vulnerable, biologically and socially. Research shows that HIV infection among women is the fastest growing segment of the AIDS epidemic - which is not surprising given that expectations of male and female behaviour differ radically, particularly in African society. An unequal balance of power favours men, who in most cases have greater control than women over when, where, and how sex takes place. Approximately 36.2 per cent of pregnant women at public clinics in Kwa-Zulu tested HIV positive in 2000, up from 32.5 per cent in 1999. For the first time, deaths in KwaZulu-Natal outstripped births.

The government has been unable to afford the provision of anti-retroviral drugs to prolong life for most of the population. Nor, until recently, would it provide drugs short-term for infected pregnant mothers in an attempt to reduce mother-to-child transmission of HIV, which otherwise occurs in about 34 per cent of such births, although various provincial and private initiatives were doing so in parts of the country. A national programme of drug distribution to pregnant women at 18 'research sites' was begun, and officially intended to expand as soon as the provinces are ready with counselling services and advice on preventing the transmission of the virus to infants during breastfeeding. The Western Cape implemented the expansion of the programme throughout the province, and Gauteng and Kwa-Zulu Natal announced that they intended to do so too, but none of the other provinces felt able to follow their example. One, Mpumalanga, actually sacked a hospital supervisor for 'insubordination' in allowing distribution of free anti-retrovirals by a non-profit NGO working with rape survivors on hospital premises. The Treatment Action Campaign (TAC), South Africa's leading AIDS activist group, criticized the research sites as limited, too late, and a drop in the ocean among the country's 1.3 million annual births.

In an attempt to force the government's hand, the TAC and others took the issue of the compulsory provision of Navirapine before the High Court in December 2001, which ruled in their favour, but the government appealed to the Constitutional Court. It finally lost the case in early July 2002, when the Constitutional Court ruled that the government should remove the restrictions preventing Navirapine from being made available at public hospitals and clinics that were not research and training sites. The court also ordered the state to take reasonable measures to extend testing and counselling throughout the public health sector to facilitate the use of Navirapine. However, the order to provide the drug at state birthing institutions was qualified by the condition that it applied only where the facilities existed to do so, which is likely to leave a high proportion of the country's births unprotected, particularly in rural areas short of counsellors. And the case applied only to pregnant mothers at the time of the birth. There is still no state provision of anti-retroviral drugs to HIV-positive people, including mothers after the birth, most of whom die within a few years.

Already in 1999 the estimated number of AIDS orphans was put at some 420,000, with an estimated 3.1 million maternal orphans under the age of 18 in around 2015, and with 5.7 million children - roughly one-third of all children under the age of 18 - having lost one or both parents. At present many households are already headed by children, too young to earn or receive the small foster grant, but with siblings too old to receive the even smaller state grant. Households like that are in desperate need, many relying totally on handouts from charity for food, clothing, and, if they are lucky, school fees. They also suffer from the widespread stigma attached to HIV/AIDS infection, and resulting discrimination. The extended family, which has until now been a source of assistance in such cases, is under such severe strain that it can no longer be counted on to absorb orphans. The widespread customs of the sororate and levirate also decrease the chances that family members will be available to care for the children. Newspaper and other reports tell of large increases in the number of street children (Stephenson, 2000). A new phenomenon has recently been noted of adolescents sent from their homes to the city to fend for themselves or to stay with distant relatives, usually without birth certificates, with the result that the relatives cannot apply for foster grants for them and may not be able to get them accepted in any school. The list of ills resulting includes more adolescents indulging in crime, more economic and sexual exploitation of children, and a rise in the rate of children born out of wedlock, already over 70 per cent in the major urban areas (Burman and Preston-Whyte, 1992). In the longer term, there are fears that 'socially speaking, the consequences of raising such large numbers of children without love or support from primary parents may prove costly for the region'. A more vivid drawing of this scenario describes 'feral orphan gangs roaming the city streets terrorising its citizens and fighting for a fragile survival ...'.

In situations like these, there is no easy answer to the questions of whether the courts should intervene in child-headed households or with street children or children suffering gross neglect. In the first place, it may be faced with difficult questions involving which child's best interests should be accommodated where, as seems likely, there is a collision between those of the care-giving child and those being cared for. But even before a court can consider whether intervention is in the best interests of a child, it has to have alternatives available where it can place any children for whom removal is desirable, and, as noted above, these are in very short supply. Acceptance in the few new children's homes being set up to meet the crisis is perforce usually restricted to the growing number of abandoned or orphaned children who are themselves infected. Foster or adoptive homes are also dwindling, especially for infected children or those whose parents died of AIDS. In addition, for different reasons both African and Muslim custom regard adoption as unacceptable, although Pearl (1989) points out that in Islam variants of adoption techniques can be introduced. The African objections are not so easily circumvented, notably those that centre on the need for a child to be recognized by the family's ancestors.


The concept of the best interests of the child allows for considerable scope as to what criteria should be used to decide the child's best interests. Reviews of current South African law show that, given South Africa's heterogeneity, there is virtually no agreement on what values should dictate the choice between alternatives for the child even in normal situations. These, however, are not normal times. In many cases there is no choice between alternatives because there are no alternatives available. Of the factors removing choices, the size of the AIDS epidemic in South Africa currently puts the country in a class of its own, but other parts of Africa have already faced similar situations and the forecasts for parts of Asia are not encouraging. Of the other factors outlined above that delete choices, most Third World countries have them to varying extents. In such situations the best interests of the child frequently cannot be considered at any but the most basic level of survival. This is not, however, to argue for the eradication of the standard of the best interests of the child - it is probably here to stay and in theory a strong case can be made for it being an admirable standard, one to be striven for. But in the situations of many countries in the world, it is a Utopian doctrine that deludes the classes in power into believing that the interests of children are being taken care of. The reality for a large number of children is very different.

For those sections of the population who do not subscribe to the values of the standard, it is worse than a delusion: it is a foreign import that distorts the operation of their legal systems and perverts the way society provides for its members. In countries where the values of all or part of the society are based on group rights, not those of the individual, the adoption of the Convention of the Rights of the Child ceases to be a pious, if overly optimistic, attempt at social engineering, and becomes a recipe for social and legal conflict. As the Convention was not adopted by South Africa with any interpretative declaration, its operation cannot be limited to only some sections of the society. While the proponents of social engineering may hope eventually to change norms sufficiently to reconcile the clash between custom and rights in African societies based on African customary law, some religious law is by its nature not amenable to such pressure, even if political leaders are. If the peoples of Third World countries in particular are not to become increasingly sceptical about ratifying UN conventions, their leaders need to be fully aware of the implications for the laws and interests of all their members, and as regards not only theory but also reality, however awkward.

[a1]. Director, Centre for Socio-Legal Research, University of Cape Town, Private Bag, Rondebosch 7701, South Africa.