Updated: 16 April 2020
New regulations have been issued on 16 April 2020. Click on the link below:
Let’s talk Constitutionally – What about the parents whom the Minister of Social Development excluded from moving their children during the South African National Lockdown – Is this new law fair? Does it not discriminate between children and parents?
Written by Advocate Muhammad Abduroaf
It is day 15 of the National Lockdown in South Africa. Our President last night announced that the lockdown would extend for a further two weeks. Lockdown, for now, would extend until the end of April 2020. What does this mean for parents who want to have contact with their children during the lockdown period? Can they collect or visit their children during the extended lockdown period? Let us unpack the legal situation.
Moving of children during the National Lockdown Period
When the lockdown was announced, there was uncertainty as to whether parents may move children during this period. We are referring to parents and children living in separate homes. After the lockdown commenced, a directive was then issued stating that children may not be moved between homes. This brought certainty to the issue, however, had far-reaching consequences. The directive said that the child should remain with the parent he or she is at, at the start of the lockdown period.
The current regulations on the movement of children between parents
On Tuesday 07 April 2020, the Minister of Social Development, Ms Lindiwe Zulu, MP, made changes to the regulations regarding the movement of children during the lockdown period. It is now possible for certain children to be moved between parents during the lockdown period.
The regulations apply to the following parents only:
- There are arrangements in place for the children to move for one parent to another in terms of a court order; or
- A parental responsibilities and rights agreement or parenting plan registered with the office of the Family Advocate; and
- In the household to which the child is to move, there is no person who is known to have come into contact with, or is reasonably suspected to have come into contact with, a person known to have contracted, or reasonably suspected to have contracted, COVID-19;
- The parent or caregiver transporting the child concerned must have in his or her possession, the court order or the latter agreement, or a certified copy thereof.
Are these new regulations potentially unconstitutional?
Any law that discriminates against a class of people unjustifiably is unconstitutional. The class of people this new regulation discriminates against are one or more of the following parents:
- Parents who are not divorced, but separated;
- Never enforced their parental responsibilities and rights by obtaining a court order;
- Parents who do not have any co-parenting issues;
- Unmarried parents who did not see the need to approach the Court for a Court Order;
- Parents who did not see the need to register a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate; and
- Parents who could not afford to obtain a court order or register a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate; and
- So on.
Infringement of the right to equality of the aforementioned parents and children
Section 9 of our Constitution (Act 108 of 1996) states the following:
(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
Parents and minor children are not being treated equally. Only parents and children who are part of court orders and a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate are taken care of by the Minister. Not the rest of the South African population. This infringement of constitutional rights cannot be justified. Let us unpack it.
Infringement of the right to human dignity
Concerning human dignity, section 10 of our Consitution states, “Everyone has inherent dignity and the right to have their dignity respected and protected.”
I am sure, that all parents who do not have a court order or a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate feel that their dignity has been violated. This is so as the government now allows another parent who has the latter documents to move their children. There is further no logical justification to preference some parents over others. Or to put it differently some children over others.
What can parents do who do not have a court order or a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate?
It seems that the only recourse for parents who do not have a court order or a parenting plan or responsibilities and rights agreement registered with the Office of the Family Advocate has two options:
- Approach the court urgently for a court order;
- Approach the office of the family advocate to register a parenting plan or responsibilities and rights agreement.
Whether or not the court would be of adequate assistance during the lockdown and entertain your application, depends on many factors. However, in our view, if there is sufficient urgency, and as we are dealing with the best interests of children, the application would properly be dealt with.
Concerning approaching the office of the family advocate to register a parenting plan or responsibilities and rights agreement; this could come with its challenges. But not necessarily so for all cases. Contacting their offices beforehand would be advised.
Written by Advocate Muhammad Abduroaf (LL.B LL.M) – Advocate of the High Court of South Africa
Advocate Muhammad Abduroaf is a member of the Legal Practice Council of South Africa
No equality and dignity for parents without
Court Order and Registered Plans and Agreements
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