IMPACT OF THE CHILDREN'S BILL ON COMMON AND CUSTOMARY LAW

Submission by Professor Chuma Himonga (Faculty of Law, University of Cape Town)

The submission noted that the Children's Bill should not proceed on the assumption that African traditional institutions do not and cannot be expected to protect children because of the patriarchal nature of traditional society. It argued that living customary law is, unlike official customary law, dynamic, flexible and adapts to changing conditions. Therefore, and because it should not be assumed that traditional leaders are not influenced in their thinking by the values of the Constitution, they should not be excluded by the Bill from dealing with children's issues in appropriate cases. This is especially important because they are close to the communities where children live in rural areas.

But even in the case where traditional leaders still apply patriarchal norms, the solution seems to be to educate them about the constitutional values, rather than to exclude them from exercising any jurisdiction over children under the Bill. In fact, it seems inevitable that the Bill should make provision for education and awareness-raising programmes concerning the specific roles for traditional leaders and the staff of all other institutions charged with the responsibility of administering the Act who do not have professional legal training or training in human rights and values.

The submission argued that, in light of the inaccessibility of the courts in broad terms, the emphasis for the protection of children must be on community responses, for example, through families, local community leaders and organisations operating at community level rather than through courts as a primary approach. If courts are to be used, it must be those that are close to the community in location and are accessible in terms of procedures, cost etc.

The Constitution and other international children's rights instruments give recognition to the role of parents and the family in so far as they place the primary responsibility for the upbringing and the development of children upon the families of the children. Normal parents know their children and their needs better than anyone else does, and they will be more concerned as well as better able than anyone else to ensure that whatever action they take will serve their children's welfare. In addition, it was argued that the exercising of parental rights and responsibilities in this context does not necessarily undermine the idea of children's rights generally. Since society assigns child- rearing responsibilities largely to the family, it could therefore be argued that it is reasonable to accord the family as well some significant discretion in imparting its values to the children within it.

The submission warned against the practice of simply adopting approaches to the protection of children from other countries without due regard to the special circumstances pertaining to South African country, with constitutionally protected diverse cultures and religions. It was pointed out that the rights of the child in the Bill of Rights are limited. Their protection should not be taken as absolute, to the exclusion of other legitimate interest of society. There is also a need for a healthy balance between the child's autonomy rights (i.e. rights that recognise self-determination) and the rights and responsibility of parents to bring up children and to help them develop into responsible adults.

In conclusion to the general comments, the submission argued that a statute dealing with children should strive to avoid, as much as possible, unclear and complex language that will require interpretation by courts and consequent litigation, as many people will simply not be able to afford litigation to the detriment of children. This would be a difficult issue, as many of the topics dealt with in the Bill fall within the ambit of constitutional rights, which would require interpretation by courts and not by ordinary citizens or traditional authorities etc.

The extent to which the Bill repeals common and customary laws particularly in relation to certain cultural practices in customary law

The submission noted that the scope of the Bill was so wide that it would not be possible to point to all the instances where common law and customary law would be affected. The comments would therefore be focused at a general level and at the level of specific reference to clauses 8 and 12.

General

In the first place, the submission argued that, in light of the fact that legislation takes precedence over common law, any rule of common law which conflicts with the provisions of the Bill will be replaced by the Bill, while rules of common law that do not conflict with the Bill will remain in operation. If the intention of the Bill is to repeal all common law rules concerning children this should be made clear by a general provision in the Bill to the effect that the Act applies notwithstanding any common law to the contrary.

There is, however, no rule of interpretation stating that in the event of a conflict between customary law and any legislation, the latter prevails, and it was argued that such a rule would be contrary to s 211 (3) of the Constitution which provides that 'the courts must apply customary law when it is applicable, subject to the Constitution and any legislation that specifically deals with customary law.' In so far as the Bill does not specifically deal with customary law it does not exclude customary law from applying ‘when it is applicable.’ If , therefore, the choice-of –law rules indicate that customary law applies to a matter before the court, then it will be bound to apply customary law and not common law or the Children ‘s Act. The factors that are currently used to determine whether customary law applies to a matter before the court include the agreement of the parties, the nature of the transaction, the lifestyle of the parties, and the environment of the transaction. Consequently, customary law continues to apply in most areas covered by the Bill unless it is contrary to the Constitution.

The Submission argued that the effect of this is, for example, that the provisions of chapter 4 of the Bill on parental responsibilities and rights would not prevail over customary law on parental responsibilities and rights. One option for dealing with this difficult area would be to include a general provision in the Bill staling that the provisions of the Bill apply notwithstanding any rule of customary law to the contrary. The effect of such a provision, it was argued, would be to wipe out all customary law, including customary law that does not infringe the Constitution. But this risks a constitutional challenge against the Bill on the ground that it infringes ss 15, 30, 31 and 211(3) of the Constitution, all of which recognise customary law subject to the Constitution and the Constitution only (or in the case of s211 (3), subject to the Constitution and to legislation dealing specifically with customary law).

The second option offered by the submission is to 'integrate' customary rules that are consistent with the Constitution into the Children's Bill, thereby removing the separate co-existence of customary law and the Bill.

The third Option is to leave the position as it is and let the two systems run parallel to each other, with people opting for whatever system they choose to use. However, it was noted that this raises the question of how to determine which children will continue to be governed by customary law and which children will be governed by the Children's Act. It was argued that there is a need for the Bill to provide for the application of the Act in terms of which children it will apply to. The current choice-of-law rules for determining what system of law to apply when there is a conflict between customary law and the common have been developed by the courts, but the submission argued that they are not appropriate for resolving the question of the application of the Children's Act.

Causes 8 and 12

Clause 8 provides for the resolution of conflicts between other legislation and Chapter 3, but not for the resolution of conflicts between customary law o common law and the chapter. In the event of a conflict between customary law and the rights of the child in Chapter 3 (which are similar to the rights o the child in Chapter 2 of the Constitution ), the latter should prevail unless the conflicting rule of customary law can be given precedence in terms of s 36(1) of the Constitution . This is because no customary right may limit a right entrenched in the Bill of Rights unless the constitutional right may is limited by s 36(1). However, it was argued that in order to carry out this intention, clause 8 would need to be expanded to include customary law. The clause could also be expanded to the effect that in the event of a conflict between a provision of Chapter 3 and any other legislation or common law, the provisions of this Chapter prevail (subject to the Constitution) except – (a) to the extent that such other legislation or common law or customary law is or could….’

This amendment creates room for the preservation under clause 8(a) of a rule or principle of common law or customary law that though contrary to the rights of the child guaranteed in Chapter 3, is not contrary to the Constitution or is justifiable and reasonable, in terms of s 36 of the Constitution.

With regard to clause 12 of the Bill, which clearly prohibits any harmful cultural practice that affects the well-being, health or dignity of the child, the submission argued that all customary practices that are harmful to the child are repealed, unless they are "saved" by clause 8(a) of the Bill. Whether or not the practices in question are covered by this clause will be a matter, presumably, of judicial interpretation. However, the need for judicial interpretation will increase the need for litigation.

The next question posed by the submission was what the harmful practices contemplated by clause 12 are, since the Bill does not define them. The submission argued that this raises the danger that not all harmful practices are prohibited or that only practices of certain communities are targeted. It would appear that only the cultural practices of child betrothal, child marriage, marriage without consent of the parties to it, virginity testing and circumcision that are associated with customary law, and therefore with Black South Africans, are prohibited or regulated under clause 12. In comparison, the submission pointed out, other practices that could be termed harmful, depending on who is looking at them, are not prohibited. A related question is how the harmfulness of some of the specifically named cultural practices, such as virginity testing, has been established in the absence of scientific empirical research, as opposed to anecdotal research that shows that they are indeed harmful.

The submission therefore recommended that a definition of harmful cultural practices be included in the Bill, and that practices identified as harmful be prohibited outright. Practices that are not covered by this definition should not be prohibited. The challenge would be how to define harmful cultural practices, and to consider whether it is the best interests of the child alone that must be taken into consideration, or the legitimate needs or interests of the child's family or community as well.

Chastisement under customary law and common law

The submission noted that both customary law and the common law permit chastisement as a method of disciplining children. In customary law, this method is not always restricted to parents; other adult members of the community may use it to discipline the child of another person as well . The submission argued that reasonable disciplinary chastisement by the parent should not be prohibited ; and that no criminal or civil liability should attach to reasonable chastisement. In addition , the must be recognition of the need to educate parents on parenting and alternative methods of disciplining children , as well as the need for a protection mechanism at the local level to protect children from abuse by community child councils( or such other name) comprising of ,for example, local chiefs, family members of the child, the abused child, members of the South African police psychologists/ psychiatrist/ educationalists, social workers and members of community –based organisation.

It was argued that this mechanism should be directed at a restorative justice model with prosecution as a last resort. In areas with customary communities, the councils should incorporate acceptable customary methods of dealing with offenders. In cases where a parent exceeds reasonable chastisement and admits his or her responsibility for abuse to the police, such parents should be diverted from being charged and prosecuted by agreeing to attend the Community council with the aim of reaching an appropriate undertaking. This option, however, would also require a minimum definition of what is reasonable corporal punishment, taking into account the nature of what is done to the child, its duration, frequency and effect on the child, as well as the child's age, and the child's personal characteristics. The option avoids the criminalisation of ordinary parents as opposed to abusive parents.

The submission argued that the idea that a parent cannot even smack a child on the bottom to discipline him or her is not likely to be readily accepted by a lot of parents, and that the consultative process by the South African Law Reform Commission on the question of corporal punishment found no clear support for the outright abolition of this method of disciplining children. Legislation on children is of little benefit if it does not enjoy the broad support of families and communities, but relies instead solely on law enforcement agencies to implement it.

It was further argued that the concept of reasonableness in relation to chastisement seems to provide a balance between the cultural rights or religious rights of families connected with the upbringing of their children on one hand, and the other rights, including the rights of the child in the Constitution and international law on the other hand. The provisions of the Children's Bill and of other laws that punish the conduct of parents resulting in the ill-treatment and the abuse of children, such as legislation against domestic violence, the common law offences of assault, assault with intent to cause grievous bodily harm and attempted murder will still be available to protect the child against parental abuse.

The submission argued that an approach that outlaws chastisement was s hard and uncompromising child-rights approach in line with article 19 of the United Nations Convention on the Rights of the Child, which protects the right of the child from all forms of physical or mental violence, injury or abuse, and in line with constitutional rights. Corporal punishment as a judicial sentence and as a disciplinary measure at school was abolished by the Constitutional Court, because the court considered it to be inhuman, degrading and an affront to dignity, and it could not be saved by the limitations clause of the Constitution The above approach would therefore hold that all forms of corporal punishment, whether under common law or customary law or in the family, should be outlawed.

It was the contentions of the submission that it would be difficult to determine where to draw the line between reasonable chastisement and abuse, and to monitor the conduct of parents to ensure that their disciplinary measures remain reasonable. Therefore, the prohibition of all forms of corporal punishment could be seen as a more effective mechanism for protecting the child. In relation to the third option, namely a prohibition of corporal punishment without criminal penalties initially, but accompanied by a 'comprehensive public awareness and education campaign and the provision of the necessary supportive services for parents and children, the submission noted that the advantage of this option is that it would 'ultimately encourage ways of child rearing which promote dignity, respect and self-discipline.

With reference to sub clause 142(3) which reads: "any legislation and rule of common law or customary law authorising corporal punishment of a child by a court, including the court of a traditional leader is hereby repealed to the extent that it authorises such punishment", the submission argued that the Constitutional Court has already decided that corporal punishment as a judicial sentence is unconstitutional, and there is already legislation outlawing it. In so far as traditional courts are part of the judiciary, they are not exempt from this law.

Succession

The submission noted that the practice of "property grabbing" is harmful to children to the extent that it deprives them of a source of livelihood, especially in light of the general breakdown of traditional support systems for individuals that were anchored in kinship relationships, as well as the conditions of poverty under which the majority of people live. In these circumstances, the property left by parents is a critical resource for the support of their minor children.

It was pointed out that the Constitutional Court's decision in the case of Bhe has settled the question of children's rights to inherit from their parents, albeit temporarily. The effect of the decision is that all children, whether male or female or extra-marital are entitled to inherit from their parents in terms of the Intestate Succession Act of 1987. This legal position will continue until Parliament has enacted legislation regulating succession under customary law.

It was recommended that the Bill should not only prohibit any practice that prevents children from inheriting from their parents, but that it should also provide for children to inherit from their parents along the lines of the temporary scheme instituted by Constitutional court in the Bhe case.

Parental rights and Responsibility under customary law and the Link to statutory law

Guardianship

The submission held that the parental rights and responsibilities provided for in the Children ‘s Bill are at variance with customary law. In terms of customary law, children are affiliated to their mother’s husband and his family if he paid lobolo for her marriage, regardless of who the biological father is. On the other hand, children of an unmarried woman are affiliated to the head of her family and his family. The support of the children is primarily the responsibility of the family to which they are affiliated. The father has no responsibility towards the support of his child unless he has acquired guardianship through the system of affiliation of children discussed above. Underlying the customary law of the child is the welfare of the child, which is embedded in the group responsibility of the family of the parent to which the children are affiliated.

Relation to statutory law

It was further argued that the provisions of the Bill conflict with s 8(4)(e) and (5) of the Recognition of Customary Marriages Act, which make explicit reference to the role of customary law and traditional leaders in relation to provision for maintenance after divorce and to mediation in disputes before the dissolution of the marriage respectively. The submission noted that this Act does not exclude matters relating to children from the application of these provisions. Since the provisions of the Bill do not override customary law, it may be assumed that they do not prevail over any legislation that deals specifically with customary law either. Thus the provisions of the Recognition of Customary Marriages Act above are unaffected by those provisions of the Bill with which they are in conflict.

Section 28(2) of the Constitution states that the best interests of the child are of paramount importance in every matter concerning the child. This principle is applicable to customary law as well. This would mean that if the affiliation of the child or the notion of the best interests of the child under customary law stated above is contrary to the best interests of the child as perceived from the point of view of the constitutional principle, then the latter would prevail over the former. The decision-maker would therefore be required to apply the constitutional principle to determine the issue of custody of the child contrary to the system of customary law of affiliation of children discussed above.

With regard to the guidelines to the interpretation of the best interests of the child provided by clause 6 of the Bill, the submission noted that they apparently accommodate customary law to the extent that they make reference to the factors listed in clause 6(1)(a), (f), (h), (j) and (k). They do not therefore conflict with the acquisition of parental power under customary law, The Other factors are in one way or another at variance with the basic principles of affiliation of children under customary law.

Forums for deciding matters relating to children

The Bill provides that only the High Court has jurisdiction over issues of guardianship of the child. The submission argued that the High Court should not have exclusive jurisdiction on matters of guardianship . Instead , matters of parental responsibility and rights should be dealt with by traditional leaders, provided that they are properly educated on the constitutional principles and values underlying the rights of children, as well as by other lower courts. In addition , it was argued that, in light of the HIV pandemic, as a result of which adults die in quick succession, it would be extremely cumbersome for several people to go to the High Court in succession to be appointed as guardians of the same child every time the child's guardian dies.

The submission proposed that the Bill provide for the jurisdiction of traditional leaders in matters of guardianship, alongside with the provision that they be afforded the education that is relevant to the discharge of their jurisdiction in matters of guardianship. The traditional leaders' jurisdiction in this regard could be linked to the community child council referred to earlier by, for example, requiring the participation of the council in the hearing of disputes on guardianship by traditional leaders' courts.

Along with this recommendation, it was recommended that the Bill also provide for automatic guardianship of children after the death of both parents of the child. For example, adult siblings, grandparents, uncles/ aunts etc should be guardians in that order, unless the best interests of the child suggest otherwise. This would help minimise uncertainties on the question of guardianship and obviate unnecessary litigation over guardianship.