Section 28 delivers social justice for children only when it is aimed at the systems that fail them
Introduction
Section 28 of the Constitution gives children a list of entitlements and one overarching standard, namely that in every matter concerning the child the child’s best interests carry the greatest weight (Republic of South Africa, 1996). The list covers identity from birth, family or suitable alternative care, and basic nutrition, shelter, health and social services. On its face it reads like a social justice charter. Yet when you look at where the best-interests principle is being worked on in recent scholarship, a good deal of it is surrogacy applications, lockdown co-parenting rules and end-of-life disputes (Holness et al., 2023; Singh and Msuya, 2024; Lerm, 2025). Those matters count, obviously. They are also matters about one family at a time.
This paper argues that section 28 does its social justice work when it is aimed at systems, meaning the admission rules, grant regimes, registration machinery and regulatory frameworks that decide whether a child’s entitlements can actually be reached (Kruger, 2024; Machaka, 2025), and that it does much less when it is used mainly to referee private decisions. I take that position because the sources point the same way in three places: education, care and caregiver support, and the follow-through on reform (Machaka, 2025; Kruger, 2024; Adeola, 2023). The paper starts with what the text promises, moves to the best-interests cases, then takes education, care and money in turn, and ends with what reform has and has not delivered.
What the text promises and where it goes soft
The wording matters more than it first seems. Section 29(1)(a) says everyone has the right to a basic education and attaches no reference to available resources, and in Juma Musjid in April 2011 the Constitutional Court read it as immediately realisable, limitable only under section 36 (Governing Body of the Juma Musjid Primary School v Essay, 2011; Republic of South Africa, 1996). Social security is different. Section 27(1)(c) promises appropriate social assistance to those who cannot support themselves and their dependants, but section 27(2) ties it to reasonable measures within available resources and progressive realisation (Republic of South Africa, 1996). Section 28(1)(c) sits somewhere between the two. Its content, as Kruger (2024) shows when she works through kinship care, has largely been supplied through grants and statutes, and those come with budgets and means tests attached.
That split shows up in how commentators judge the state. Mahleza and Maake-Malatji (2024) object that South Africa’s declaration on ratifying the International Covenant on Economic, Social and Cultural Rights framed education as progressively realisable, which in their view sits badly with what South African courts have held. Kruger (2024), looking at the care side, concludes that the country can still be seen as meeting its obligations despite low grant values, because of resource limits. Those are two different standards applied to two different rights, and they happen to produce two different moods. One is impatient. The other is patient. A child who needs both a school place and a caregiver with an income lives under both.
Best interests as a referee of private choices
The best-interests principle is at its busiest in disputes between adults. Holness et al. (2023) criticise the Pretoria High Court’s decision in Ex parte JCR, where psychological assessments of the existing children of surrogate mothers and commissioning parents were required before surrogacy agreements were confirmed. Their complaint is that the court treated something that might benefit children as something their best interests require, with no evidence, and that the assessments could themselves distress the children they were meant to protect. They add that the later full bench decision in Ex parte Three Surrogacy Applications treated such assessments as a matter of judicial discretion, not a general requirement, which they read as support for their view (Holness et al., 2023).
The lockdown literature makes a similar point from another direction. Singh and Msuya (2024) argue that the movement rules in the COVID-19 regulations, which allowed children to move between co-holders of parental rights only under a court order or a registered parenting plan, left unmarried and separating parents stranded and ignored children’s emotional needs. A one-size-fits-all approach, they say, was not the most appropriate, and decisions should be tested case by case against the child’s best interests. Lerm (2025) reaches for section 28(2) in a harder setting, the withdrawal of life support from a minor over parental objection, noting that the court in Hay v B relied on it when parents refused a blood transfusion on religious grounds, and urging mediation and real weight for family, cultural and religious context before parental authority is overridden.
What stands out across the three is that the principle works as a demand for evidence and proportion (Holness et al., 2023; Singh and Msuya, 2024; Lerm, 2025). That is valuable. It stops a court from treating a hunch as a child’s interest. But in each setting the state is more of a referee than a defendant, and the child’s claim is against a parent, a clinic or a regulation drafted in a hurry. None of that tells us much about whether a child living in poverty can reach a school, a grant or a registered crèche (Nyawo, 2023). For that, the sources move to a different kind of case.
Education: where systems exclude
The education decisions are the clearest example of rights aimed at a system. In Centre for Child Law v Minister of Basic Education, decided on 12 December 2019, the Eastern Cape High Court declared clauses 15 and 21 of the national Admission Policy invalid, ordered the Eastern Cape education authorities to admit children without birth certificates and to accept alternative proof of identity such as a sworn affidavit, and held that sections 39 and 42 of the Immigration Act do not prohibit admitting undocumented foreign children (Centre for Child Law v Minister of Basic Education, 2019). Machaka (2025) reads this against the unqualified nature of section 29(1)(a) and argues that every day of delay in fixing the rules compounds the harm. Mahleza and Maake-Malatji (2024) go further and say that immigration provisions, document-heavy admission rules and a weak birth-registration system together keep stateless and undocumented children out.
Here the statutory picture gets muddy, and it is worth being honest about that. The Basic Education Laws Amendment Act 32 of 2024 was assented to on 13 September 2024 and published in Government Gazette 51258 on 16 September 2024, and its section 4 inserts provisions saying a learner whose documents were not supplied at application must still be allowed to attend (Republic of South Africa, 2024). Machaka (2025) describes the implementation of the admission provisions as delayed. The Department of Basic Education’s consolidated text of the Schools Act, last updated in December 2024, prints the new subsections as amended with effect from 24 December 2024 (Department of Basic Education, 2024). I could not find a commencement notice that settles the question. For a child at a school gate that gap is not academic, and it is also why the court decisions and the unqualified constitutional right are the safer footing for now.
Documents are the gate. In Centre for Child Law v Director-General: Department of Home Affairs, decided on 22 September 2021, the Constitutional Court confirmed the invalidity of section 10 of the Births and Deaths Registration Act 51 of 1992, which let a child born out of wedlock be registered under the father’s surname only with the mother’s cooperation. The majority found unfair discrimination against unmarried fathers and held that the section also affected children born out of wedlock, including their dignity, while Mogoeng CJ dissented on the ground that the distinction served a legitimate purpose of protecting children’s interests (Centre for Child Law v Director-General: Department of Home Affairs, 2021). The case was about a father and a surname. Read with Mahleza and Maake-Malatji (2024), it shows how a registration rule can become a barrier long before a child arrives at school.
Even once a child is inside, the question of belonging remains. Essop (2023) examines the conflict between section 29(1) and the rights to religion, culture and expression in school dress codes, concluding that a rule barring Muslim learners from wearing a headscarf amounts to unfair religious discrimination unless the school can justify it, and that the National Guidelines on School Uniform should be made binding instead of advisory. This is a smaller matter than document gates, but it points to the same lesson. A right to education that depends on each governing body’s goodwill is a right that varies from school to school, and the children for whom it varies most are usually the ones already on the margins (Essop, 2023; Mahleza and Maake-Malatji, 2024).
Care and money: the caregiver in the middle
Kinship care shows how a children’s right can depend on an adult’s paperwork and income. Kruger (2024) traces how foster child grants became the default funding for relatives raising children. More than 110,000 grants lapsed between 2009 and 2011, a 2011 court-ordered settlement in Centre for Child Law v Minister of Social Development imposed a moratorium on lapsing, and the deadline for a lasting legal solution was extended several times, up to 2022. The solution, as she describes it, was the Social Assistance Amendment Act 16 of 2020, in effect from 30 May 2022, and the Children’s Amendment Act 17 of 2022, in operation from 8 November 2023. The first of these brought in a child support grant top-up for orphaned and abandoned children in kinship care, worth R760 a month when she wrote against a basic grant of R500, subject to a means test of R7,600 a month for a single caregiver (Kruger, 2024).
Kruger (2024) welcomes the top-up but flags two weaknesses. The amount is low, and children in the same household can end up with different levels of support. More tellingly, there is no formal process for recognising informal kinship carers, which leaves them without a document confirming their parental responsibilities and rights. She suggests a simple assessment by the Department of Social Development. I think the point generalises. The child’s entitlement under section 28(1)(b) to family or alternative care is real, but the adult who delivers it has to prove who she is before the system pays (Kruger, 2024; Republic of South Africa, 1996).
Nyawo (2023) pushes the point from the mother’s side. She notes that about 62.1 per cent of children are multidimensionally poor, that 40 per cent of households are headed only by women, and that the child support grant reaches 12.5 million children, and then argues that courts treat poor mothers as neutral claimants or as vehicles for child protection, not as women whose poverty has a history. Her example from the pandemic is telling. The relief top-up to the child support grant was adjusted to apply per caregiver instead of per child, which she describes as disastrous. Whether one accepts her broader claim that law helps reproduce inequality, the example is hard to argue with: a children’s measure designed around the caregiver can shortchange the very children it targets (Nyawo, 2023; Kruger, 2024).
Early childhood development sits on the same fault line. Ally (2023) reports that fewer than a third of children aged 0 to 3 access any programme, that at most about 13 per cent of children in the poorest households receive a government subsidy, and that 41 per cent of providers are unregistered. Her explanation is regulatory rather than moral. Layered rules under the Children’s Act and the 2015 national environmental health norms overlap and sometimes conflict, so under-resourced providers who serve poor communities can end up excluded from the system altogether. She asks regulators to balance child safety against parental choice, provider support and state capacity, and argues that doing so is constitutionally required. That is an uncomfortable claim for anyone who thinks more regulation always protects children more (Ally, 2023; Nyawo, 2023).
Reform, follow-through and the resource objection
The reform record is mixed. Adeola (2023) examined how Kenya, Nigeria, Egypt and South Africa have acted on the African Children’s Charter committee’s concluding observations and found normative and institutional change but uneven implementation, with harmonisation of marriage ages in Nigeria and South Africa among the unmet recommendations. She also admits that it is hard to attribute any state action directly to a given observation. That caution matters for this paper. South Africa has changed its statutes, as the 2020 and 2022 amendments and the 2024 education law show, but the sources suggest that the distance between a changed statute and a child’s changed day is where most of the unfinished work sits (Adeola, 2023; Machaka, 2025).
The strongest objection to my argument is about resources. Section 27(2) says progressive realisation within available resources, the state has finite money, and Kruger (2024) herself accepts that low grant values can be defended on that basis. Fair enough. But the objection proves less than it appears to. Many of the barriers in these sources appear to cost little or nothing to remove: accepting a sworn affidavit instead of a birth certificate, recognising an informal carer by a short assessment, aligning two sets of ECD norms, making school uniform guidelines binding (Mahleza and Maake-Malatji, 2024; Kruger, 2024; Ally, 2023; Essop, 2023). A state that says it lacks money for a grant top-up cannot easily say it lacks money to stop demanding a document the family cannot get.
Where does best interests fit in all this? I would keep it, and aim it differently. Treated as a test for systems, it asks of a school admission rule, a registration form or an inspection regime whether it was designed with the child who will hit it in mind, which is close to what the education decisions already do. Treated only as a referee for private choices, it risks becoming the thing Holness et al. (2023) warn about, a label attached to a preference. Singh and Msuya (2024) are right that case-by-case assessment matters. The point is that it should not be the only place the principle lives.
Conclusion
Children’s rights in South Africa are written in generous terms and delivered unevenly, and the unevenness is rarely about the content of the right. It is about the document, the carer, the inspector and the form. The education decisions show courts willing to strike at systems, and the care and ECD sources show how much of children’s welfare runs through adults and through regulation. The best-interests principle is useful in private disputes, but its social justice value lies in being turned on the machinery that stands between a child and what section 28 already promises (Kruger, 2024; Nyawo, 2023). If there is one practical lesson, it is that reform should be measured from the child’s side of the counter. Statutes passed and amendments commenced are a start, and the test is whether the child who has no papers, no registered carer and no subsidy can now get in (Machaka, 2025).
Reference list
Adeola, A. (2023) Moving beyond baby steps? An examination of the domestic implementation of concluding observations from state parties’ reports on the African Children’s Charter. Potchefstroom Electronic Law Journal, 26. doi:https://doi.org/10.17159/1727-3781/2023/v26i0a8325
Ally, N. (2023) Clearing the red tape: towards a balanced regulatory framework for early childhood development. Potchefstroom Electronic Law Journal, 26. doi:https://doi.org/10.17159/1727-3781/2023/v26i0a15768
Essop, Z. (2023) Children’s right to education versus their right to religion and culture in South Africa: with specific reference to the wearing of a headscarf in South African schools. Potchefstroom Electronic Law Journal, 26. doi:https://doi.org/10.17159/1727-3781/2023/v26i0a14904
Holness, W., Clark, B., Edgcumbe, A., Mnyongani, F., Soni, S., Shozi, B. and Thaldar, D. (2023) A ‘parenting licence’ granted by one’s existing children? Critical analysis of the judgment in Ex parte JCR 2022 5 SA 202 (GP). Potchefstroom Electronic Law Journal, 26. doi:https://doi.org/10.17159/1727-3781/2023/v26i0a14694
Kruger, H. (2024) Safeguarding the rights of children living in kinship care in South Africa. Potchefstroom Electronic Law Journal, 27. doi:https://doi.org/10.17159/1727-3781/2024/v27i0a16680
Lerm, H. (2025) When the inherent authority of the High Court trumps parental authority in medical decision-making involving the withdrawal of life support treatment affecting minor children and their parents. Potchefstroom Electronic Law Journal, 28. doi:https://doi.org/10.17159/1727-3781/2025/v28i0a15475
Machaka, B.J. (2025) Recent legal developments: reconceptualising undocumented children’s access to basic education in South Africa. Potchefstroom Electronic Law Journal, 28. doi:https://doi.org/10.17159/1727-3781/2025/v28i0a18160
Mahleza, Y. and Maake-Malatji, M.I. (2024) A case for the right to education for stateless and undocumented children: a South African analysis in the light of international law. Potchefstroom Electronic Law Journal, 27. doi:https://doi.org/10.17159/1727-3781/2024/v27i0a17750
Nyawo, P. (2023) Law, South African mothers living in poverty and the COVID-19 pandemic. Potchefstroom Electronic Law Journal, 26. doi:https://doi.org/10.17159/1727-3781/2023/v26i0a13146
Singh, A. and Msuya, N.H. (2024) Noting the impact of lockdown co-parenting regulations on the wellbeing of children in South Africa. Potchefstroom Electronic Law Journal, 27. doi:https://doi.org/10.17159/1727-3781/2024/v27i0a12353
Legislation and case law
Centre for Child Law and Others v Minister of Basic Education and Others (2019) [2019] ZAECGHC 126; 2020 (3) SA 141 (ECG). Available at: https://www.saflii.org/za/cases/ZAECGHC/2019/126.html (Accessed: 18 October 2026).
Centre for Child Law v Director-General: Department of Home Affairs and Others (2021) [2021] ZACC 31; 2022 (2) SA 131 (CC). Available at: https://www.saflii.org/za/cases/ZACC/2021/31.html (Accessed: 18 October 2026).
Department of Basic Education (2024) South African Schools Act 84 of 1996 (as amended by BELA Act 32 of 2024). Available at: https://www.education.gov.za/Resources/Legislation/Acts.aspx (Accessed: 18 October 2026).
Governing Body of the Juma Musjid Primary School and Others v Essay N.O. and Others (2011) [2011] ZACC 13; 2011 (8) BCLR 761 (CC). Available at: https://www.saflii.org/za/cases/ZACC/2011/13.html (Accessed: 18 October 2026).
Republic of South Africa (1996) Constitution of the Republic of South Africa, 1996, Chapter 2. Available at: https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-02.pdf (Accessed: 18 October 2026).
Republic of South Africa (2024) Basic Education Laws Amendment Act 32 of 2024. Government Gazette 51258, 16 September 2024. Available at: https://www.parliament.gov.za/storage/app/media/Acts/2024/Act_32_of_2024_Basic_Education_Laws_Amendment_Act.pdf (Accessed: 18 October 2026).