Topic 2 | Cases

How children’s rights and the best interest of the child (BIC) principle have been applied in South African law

Consensual sex between teens case

The Teddy Bear Clinic for Abused Children and An-other v Minister of Justice and Constitutional Development and Another, [2013] ZACC 35, is a decision of the Constitutional Court of South Africa which dealt with the application of statutory rape laws to con-sensual sexual acts when both parties were younger than the age of consent.

The court struck down as unconstitutional the provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 that made it a crime for children between the ages of 12 and 16 to engage in consensual sexual activity with other children in the same age range. The court found that these laws infringed the rights to dignity and privacy and the best interests of the child principle.

The teen pregnancy case

In the teen pregnancy case the constitutional court ruled that schools may not bar learners from attending school when they are pregnant as it was not in the best interest of the child and because of its inherent effect on other constitutional rights such as human dignity and bodily integrity. It is important that school policies be consistent with the provisions of the Bill of Rights. As far as trans and gender non-conforming children are concerned, it is required that schooling environments adhere to constitutional standards of “equality”, “non-discrimination on the basis of gender and sex”, “human dignity”, etc. In ensuring the best interest of trans and gender non-conforming children, regard and protection of their constitutional rights is thus warranted