CHAPTER 1

INTERPRETATION, OBJECTS, APPLICATION AND IMPLEMENTATION OF ACT

Interpretation

1. (1) In this Act, unless the context indicates otherwise—

"abandoned", in relation to a child, means a child who—

(a) has obviously been deserted by the parent, guardian or care-giver; or

(b) has, for no apparent reason, had no contact with the parent, guardian, or care-giver for a period of at least three months;

"care", in relation to a child, includes, where appropriate

(a) within available means, providing the child with—

(i) a suitable place to live;

(ii) living conditions that are conducive to the child’s health, well-being and development; and

(iii) the necessary financial support;

(b) safeguarding and promoting the well-being of the child;

(c) protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation, and any other physical and moral harm or hazards;

(d) respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child’s rights set out in the Bill of Rights and the rights set out in Chapter 3 of this Act;

(e) guiding and directing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development;

(f) guiding, advising and assisting the child in decisions to be taken by the child, taking into account the child’s age, maturity and stage of development;

(g) guiding the behaviour of the child in a humane manner;

(h) maintaining a sound relationship with the child; and

(i) generally, ensuring that the best interest of the child is the paramount concern in all matters affecting the child;

"care-giver" means any person other than a [the biological or adoptive] parent who factually cares for a child, whether or not that person has parental responsibilities or rights in respect of the child, and includes—

(a) a foster parent;

(b) a kinship care-giver;

(c) a family member who cares for a child in terms of an informal kinship care arrangement;

(d) a person who cares for a child whilst the child is in temporary safe care; or

[(e) a primary care-giver who is not the biological or adoptive parent of the child; or]

(e)[(f)] the child at the head of a child-headed household [to the extent that that child has assumed the role of primary care-giver];

"child labour" means the provision of labour by a child in exchange for payment and includes—

(a) any situation where the child provides labour but somebody else receives remuneration on the child’s behalf;

(b) any situation where the child provides labour as an assistant to somebody else and his or her labour is deemed to be the labour of that other person for the purposes of payment;

(c) any situation where the child’s labour is used for gain by any individual or institution whether or not the child benefits directly or indirectly; and

(d) any situation where there is in existence a contract for services where the party providing the services is a child whether the person using the services does so directly or by an agent;

"children’s court" means a children’s court referred to in section 42;

"contribution order" means an order referred to in section 161, and includes a provisional contribution order referred to in section 162(2);

["court" means—

(a) a children’s court as provided for in section 42; and

(b) for the purpose of Chapter 20, the High Court;]

["early childhood development programmes" means programmes referred to in section 91(3);]

["early childhood development services" means services referred to in section 91(2);]

"exploitation", in relation to a child, includes—

(a) all forms of slavery or practices similar to slavery, including debt bondage or forced marriages;

(b) [commercial] sexual exploitation;

(c) servitude;

(d) forced labour or services;

(e) the worst forms of child labour prohibited in terms of section 141; and

(f) the removal of body parts;

"family member", in relation to a child, means—

(a) a parent of the child;

(b) any other person who has parental responsibilities and rights in respect of the child;

[(c) a primary care-giver of the child;]

(c)[(d)] a grandparent, brother, sister, uncle, [or] aunt or cousin of the child;

(d)[(e)] any other person with whom the child has developed a significant relationship, based on psychological or emotional attachment, which resembles a family relationship;

"father", in relation to a child, includes the adoptive father of a child, but excludes—

(a) the biological father of a child conceived through the rape of the child’s mother;

(b) any person who is biologically related to a child by reason only of being a gamete donor for purposes of artificial fertilisation; and

(c) a parent whose parental responsibilities and rights in respect of a child have been terminated;

"guardian" means a parent or other person who has guardianship of a child;

"guardianship", in relation to a child, means guardianship as contemplated in section 18 [—

(a) administering and safeguarding the child’s property and property interests;

(b) assisting or representing the child in administrative, contractual and other legal matters; or

(c) giving or refusing any consent required by law in respect of the child, including –

(i) consenting to the child’s marriage;

(ii) consenting to the child’s adoption;

(iii) consenting to the child’s departure or removal from the Republic;

(iv) consenting to the child’s application for a passport; and

(v) consenting to the alienation or encumbrance of any immovable property of the child];

"illegal foreign child" means a child who is unlawfully in the Republic after an illicit entry into the Republic by the child or the child’s parents;

"medical practitioner" means a person registered or deemed to be registered as a medical practitioner under the Health Professions Act, 1974 (Act No. 56 of 1974) and includes a dentist so registered or deemed to be registered;

"National Child Protection Register" means the register referred to in section 111;

"organ of state" means an organ of state as defined in paragraphs (a) and (b) of section 239 of the Constitution;

"parent", in relation to a child, includes the adoptive parent of a child, but excludes—

[(a) the biological father of a child conceived through the rape of the child’s mother;]

(a) any person who is biologically related to a child by reason only of being a gamete donor for purposes of artificial fertilisation; and

(b) a parent whose parental responsibilities and rights in respect of a child have been terminated;

"parental responsibilities and rights", in relation to a child means the responsibilities [responsibility] and the rights [right] referred to in section 18 [―

(a) to care for the child;

(b) to have and maintain contact with the child; and

(c) to act as the guardian of the child];

["parent-substitute" means a person appointed in terms of section 26;]

["partial care" means taking care of a child in accordance with section 76;

"partial care facility" means any premises or other place used partly or exclusively for the partial care of six or more children, which place may include—

(a) a private home;

(b) other privately owned or managed premises; or

(c) a school, hospital or other state managed premises where partial care is provided by a person other than the school, hospital or other organ of state;]

"party", in relation to a matter before a children’s court, means—

(a) a child involved in the matter;

(b) a parent;

(c) a person who has parental responsibilities and rights in respect of the child;

[(d) a primary care-giver of the child;]

(d)[(e)] a prospective adoptive or foster parent or kinship care-giver of the child;

(e)[(f)] the department or the designated child protection organisation managing the case of the child; or

(f)[(g)] any other person admitted or recognised by the court as a party;

"person unsuitable to work with children" means a person listed in Part B of the National Child Protection Register;

["primary care-giver", in relation to a child, means—

(a) a person who has the parental responsibility or right in caring for the child and who exercises that responsibility and right;

(b) a person who cares for a child with the implied or express consent of a person referred to in paragraph (a);

(c) a foster parent;

(d) a child and youth care worker at a child and youth care centre where a child has been placed; or

(e) a person who cares for a child whilst the child is in temporary safe care, but excludes a person who receives remuneration other than a social security grant to care for the child;]

"removal of body parts" means the removal of any organ or other body part from a living person in violation of the Act;

"residential care programme" means a programme described in section 191(2) which is or must be offered at a child and youth care centre;

"respondent" means any person legally liable to maintain or to contribute towards the maintenance of a child for whose maintenance, treatment or special needs a contribution order is sought or was made in terms of Chapter 11;

"school" means—

(a) an independent school registered or deemed to be registered in terms of section 46 of the South African Schools Act, 1996 (Act No. 84 of 1996); or

(b) a public school contemplated in Chapter 3 of the South African Schools Act, 1996 (Act No. 84 of 1996);

"temporary safe care", in relation to a child, means care of a child in an approved child and youth care centre, shelter or private home or any other place of a kind that may be prescribed by regulation , where the child can safely be accommodated pending a decision or court order concerning the placement of the child, but excludes care of a child in a prison or police cell;

"trafficking", in relation to a child

(a) means the recruitment, sale, supply, transportation, transfer, harbouring or receipt of children within or across the borders of the Republic―

(i) [by means of] by any means, including the use of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of giving or receiving of payments or benefits to achieve the consent of a person having care of [control over] another person, for the purpose of exploitation;

(ii) due to a position of vulnerability,

for the purpose of exploitation;

(b) includes the adoption of a child facilitated or secured through illegal means.