The court held that section 12(2) (c) of the Child Care Act, amongst others, provided that any policeman, social worker or authorised officer could remove a child from any place to a place of safety without a warrant if the policeman, social worker or authorised officer had reason to believe that such child's circumstances were as described in the above paragraphs. The court noted that the respondents' behaviour was a serious infringement of the children's fundamental rights protected in terms of ss 28(2), 28(1)(c), 28(1)(g), 33, 34, 12 and 35 of the Constitution, whilst it also infringed their statutory rights contained in ss 12 and 14 of the Child Care Act.
In addition, the court held that the bringing of more children to the Lindela Repatriation Centre, subsequent to the curator's report having been filed, was also a breach not only of the aforementioned statutory rights, but also in direct conflict with the provisions of ss 28(2), 28(1) (c), 28(1) (g), 33, 34, 12 and 35 of the Constitution. The detention of those children at Lindela was unlawful and invalid and should cease immediately. The court concluded that the way in which those children were being deported was not only unlawful, it was shameful.
Immigration law; foreign unaccompanied minors; detention; deportation; children's rights; constitutional law
The instant application arose out of the situation in which a number of unaccompanied foreign children, ear-marked for deportation, were being detained in a repatriation camp where they were accommodated together with the adults at the camp. When they were eventually deported, the children stood to be transported by truck and train to their country's border and then on to the nearest police station within their country. Notwithstanding the recommendation of the curator, the Department of Social Development (represented by the 3rd, 4th and 5th respondents) did nothing to facilitate the children's to be brought before the children's court or to assist in the investigation of the circumstances of each child, and, furthermore, continued to admit children to the repatriation camp.
The court held that the respondents had a duty to liaise with each other, to find a solution and to work on detailed practical arrangements to ensure that unaccompanied foreign children were dealt with in accordance with the principles set out.
Persons within South Africa’s territorial boundaries had the protection of South Africa’s courts and the Constitution. S 28(2) of the Constitution provided that (a) child's best interests were of paramount importance in every matter concerning the child'. Although the phrase 'best interests of the child' was well known in South African law as it had historically provided the standard in terms of which the court exercised its inherent jurisdiction as upper guardian of all minors, on a wide interpretation, s 28(2) went considerably further than the original concept.