SDG16+ Champions of Change

The lawyers who are using strategic litigation to transform children’s lives in South Africa

South Africa’s Centre for Child Law is a pioneer in conducting strategic litigation to strengthen child rights.

Based at the Law Faculty at the University of Pretoria the Centre has instituted, or been instrumental to the success of, landmark cases including the banning of corporal punishment, decriminalization of consensual sex between minors, protection of the identities of child victims of crime, and protection of the right to education of child migrants and undocumented children. Along with its many advocacy, research and education projects, its work has greatly advanced access to justice for children.

In the latest of our Justice Champions of Change series, Mark Weston talked to Ann Skelton and Karabo Ozah, the two most recent directors of the Centre, to find out more about how strategic litigation works and what accounts for their success.

Mark: What is the state of the data in South Africa on the justice-related challenges that children face?

Ann: It’s been a problem to create an integrated justice system database, which is still not in place although it’s been talked about for many years. This means you can’t always compare data from different sources. For example, child and youth care centers that house child offenders gather their data in a way that shows the annual number of children coming in and out of those centers, whereas correctional services gives you a snapshot figure on the last day of each month. You can’t compare those figures.

Karabo: The problem is that you don’t have a system of seeing how children come into the system and go out and what they are doing when they are in the system. For example, we were working on a project on migrants, and people sitting in parliament would call us and ask us if we had a sense of how many unaccompanied child migrants there are in the country. And we would say, “But you’re the government, why are you asking us?” The government should have this data.

And when unaccompanied migrant children are in the care system they are protected, but when they age out of the system they face potentially being deported to their countries of origin. But sometimes nobody has made the effort to find out which is their country of origin, even after they have been in care for twelve years. When they are about to age out of the system they need to get a South African document to allow them to transition as an adult into our society. And government social workers want us to come and help them get court orders to keep the children in the country. We have to secure them permanent residence, but the social workers often haven’t done proper tracing when the child came into the system initially, so it’s difficult.

Mark: When was the Centre for Child Law set up, and why?

Ann: It was set up in 1988 by a professor at the University of Pretoria called Trynie Boezaart. She intended to have child law recognized separately as a separate field of law, rather than being subsumed under family law. She had this vision that child law cuts across all areas of law — public law, private or constitutional law and so on. So she was focusing on trying to make sure that it was well represented in academic writing and she published a comprehensive book on child law.

Mark: And what was your role when you joined?

Ann: I joined in 2003 to set up a strategic litigation unit. The Centre had been more of an academic center at the beginning. When I came, we started looking for opportunities to take cases to court on children’s rights matters, because we had seen that there had been a lot of success in strategic litigation in other thematic areas and we wanted to see what we could do with it in the area of child rights.

Mark: What do you mean by strategic litigation?

Ann: What we understand by strategic litigation is that we are reaching beyond the impact for just the child or a particular group of children to something more generalized within society. And we’re doing that from the perspective of promoting child rights.

Mark: Can you give some examples?

Ann: One of the first big cases that we dealt with in the Constitutional Court was about children of imprisoned caregivers. The Constitutional Court put out a call and our submissions had a major impact on the outcome of the case. The court changed the law to say that henceforth, whenever a court is sentencing a primary caregiver, it has to consider what the impact of the imprisonment will be on the best interests of the child.

Another big case we were involved with related to minimum sentences for sixteen and seventeen year olds. A new law said that minimum sentences would apply to those convicted of crimes, and it caught sixteen and seventeen year olds within its ambit. But according to our constitution sixteen and seventeen year olds are children, and therefore we said that this went against the principle of detention for children being a measure of last resort and that it should be for the shortest appropriate period of time. We won the case in the High Court, and within a year we were in the Constitutional Court.

Mark: Can you tell me about a couple of more recent highlights of the litigation work?

Karabo: We recently contributed to a case in the Constitutional Court about the decriminalization of cannabis use by children. Years ago, the court decriminalized personal and private use of cannabis by adults, but it excluded children. And there was a case in the High Court where some children were caught in the criminal justice system because they tested positive for cannabis in school and ended up in residential diversion, which was inappropriate in terms of our law. A judge invited us to make submissions, and we invited eleven government ministers to discuss the case. The ministers agreed with us — they said there are other laws and policies to deal with children and that they didn’t need to use the criminal justice system for this. We won the case in the High Court and are pleased to share that this decision has been recently upheld in the Constitutional Court.

Mark: Were there any challenges during this case?

Karabo: Yes, the Constitutional Court expressed a concern over what would happen if children were selling drugs. We made it very clear that it’s nothing to do with selling but about private use. If they are selling then they should go through the criminal justice system. It’s similar to an earlier case we worked on about decriminalizing consensual sexual activity between children. You have to ask what the purpose is of criminalizing children for these things. The purpose is to deter them, but the criminal justice system isn’t deterring them, it’s just punishing them. The judgement in the consensual sex case, which we won, was a judgement about children’s rights to privacy and dignity, and we used similar arguments in the cannabis case.

Mark: How has the Centre’s work evolved?

Karabo: We’ve started to think more about what is the change we want to see and what are the best tools for achieving that change. We achieve a lot with the litigation, but sometimes after you win a case you have to go back to parliament and make submissions again in order for the change to be implemented. So we’re trying to develop a strong legal framework, but also we need to try to change practice.

We continue to do a lot of strategic litigation, but we are also now focusing on other means of advocacy. We are spending quite a bit of money and time on research that supports litigation and that supports advocacy with parliament and on other platforms. We collaborate with other child rights organizations to push for implementation. We also want to continue to be academic, because we are part of the university so we have to publish. We try to make sure we publish at least one article per year.

And apart from the strategic litigation, we do a lot of day-to-day legal advice work. We receive telephone and email queries from across the country from parents, children, lawyers, social workers and teachers, who we advise. We also go out to train social workers to educate them about the law. We are donor-funded and donors want to see your footprints. So we make sure that our work, right from the Constitutional Court to the people on the ground, makes a difference, and we do a lot of monitoring of its impact.

Mark: How does a child get in touch with you if they have a justice problem?

Karabo: We are linked up with organizations that have hotlines, such as Childline. We get referrals from them, and sometimes social workers tell children or their parents that the Centre for Child Law might be able to help them. But also, children find our email address and they will send an email, and then we try to reach out to them.

Mark: Do you represent children in court?

Karabo: Yes, we do. Obviously we represent children in strategic litigation cases. And sometimes we have an individual client, and our Centre or another social justice organization would be the core applicant. But there are also cases where you have just the child as your client. For example, when it comes to parental responsibilities and rights and a child doesn’t want to see one of the parents and wants to bring an application, we will do that.

Mark: What are the main challenges you face in your work?

Karabo: The biggest issue is funding. If we don’t have money we can’t do our work, but we have learned to be agile and adaptable and to find new strategies to secure funding.

Aside from that, one of the current concerns we’re seeing is an increase in non-compliance with court orders by government. There is a lack of accountability. People are becoming a bit complacent, and we’re going to have regression in implementation. Sometimes government departments will say they’ve tried to comply, but then five or six years pass and there has been no compliance, so we’re having to highlight these delays so that they will be forced to act.

Mark: What would you both say you’re most proud of in the work that you’ve done?

Ann: I find it difficult to think of one particular case, but I think what I’m proud of is the fact that we have had sustained successes in the children’s rights sphere over a number of years, and that we managed to shape the legal landscape on children’s rights very significantly in terms of law reform, in terms of court judgments and in terms of policy.

It’s not just the substantive issues that we’re interested in, but the procedural ones as well. When we started this work it wasn’t common for children to be separately legally represented, but now it’s pretty standard. It’s well understood that children can take cases on their own behalf. We benefit hugely from the South African constitutional framework that allows for very wide standing. But we have exercised that muscle, shall we say, to quite an extent, even going so far as to risk putting affidavits up with no parent having co-signed with the child (but always making sure the child’s parent wasn’t too far away). We had a strategy to push the boundaries on these procedural points and to advance access to justice.

Karabo: I’m proud of how we work as a Centre. We fight very hard for our cases, but we do it in a way that is respectful. The courts call us to say they need us to come into cases as amicus curiae (advisors to the court) or to represent children. And although we litigate against government, they still want us at the table, for the value of our knowledge and experience and also for how we engage with them. Sustaining this is something that I think we should be proud of.

Mark: Are there any big justice challenges that you haven’t tackled yet in South Africa?

Karabo: One of the cases we are working on right now is that when there is a case of statutory rape [where an adult has sexual relations with a minor], an adult who has raped a fifteen-year-old child, for example, can defend themselves by saying the child misled him to believe that she was older than that. Or that the child looked older than that. The onus is on the child to show that they didn’t deceive the adult. There was one instance where a man was acquitted on appeal because he said the girl he raped looked like she was seventeen and the appeal court agreed.

We did thorough research and ended up with a 200-page document that we’re going to use for purposes of litigation. The gender issue here is very important, because we have a lot of gender-based violence in South Africa and a lot of rapes. The law allows adults to exploit young girls, and it needs to be challenged.

Ann: I’m currently a member of the UN Committee on the Rights of the Child and we’ve been talking this week about encouraging states to take videotaped evidence from children who have been sexually abused or subject to some other kind of abuse, so that they are not interviewed again and again about such traumatic incidents. There are some interesting mechanisms around how offenders’ rights can still be protected with that regime. I think South Africa could do that, and I don’t know why we haven’t. That’s another think we could think about working on.

Karabo: Another problem is that we are seeing so many convictions being set aside on appeal, where children were victims or witnesses. We started wondering if there is something wrong with how the court works and how hearings are conducted, so we did a study about the competencies of presiding officers or magistrates when it comes to sexual offences against children.

South Africa has specialized courts but there are no specialized magistrates, and the report reveals that the magistrates said they are not equipped to deal with child victims or witnesses properly. They just do a short training course, and cases fail because the magistrates don’t understand the evidence when children testify in court. And we have high rates of sexual violence against children, so if you’re not getting convictions, we have a serious problem.

Mark: Do you do any work elsewhere in Africa?

Karabo: We have collaborations with organizations elsewhere in Africa where we host workshops and provide training on strategic litigation on children’s rights. During lockdown we did this online with groups in Kenya and Uganda, for example.

And right now we are considering going into a case in Kenya, because in Kenya you can be an amicus [permitted to assist a court], even if you are not in Kenya. There is a case about media reporting on child offenders, and one of the great cases that Ann did before she left was about protecting the identity of child witnesses and offenders in the media space. In Kenya there’s a case where young girls did something at school and their faces and names were published in the media, and the High Court wrote a very silly judgment in the media’s favor. The way the law has been interpreted by the court is wrong. An organization from Kenya approached us and we had a meeting with them two weeks ago. They’re now petitioning the Supreme Court of Appeal and we’re talking about how we could intervene. We have quite a lot of knowledge on that issue, so it’s an opportunity for us to go and implement that.