This article examines the relationship between the role of the superior courts as upper guardians of minors and the constitutionally enshrined right of South African children to have their best interests considered as paramount in any matter concerning them. The powerful procedural role of the superior courts in this regard is not subject to review or appeal, enabling the courts to intervene of their own accord on behalf of and to protect all children in their area of jurisdiction. The article seeks to examine whether this role of the courts with regard to upper guardianship has become somewhat superfluous and outdated in the light of the constitutional requirement resting on the court to consider the paramountcy of the child’s best interests as an independent right. It is apparent that the high courts’ upper guardianship role provides a more flexible legal basis for judicial intervention, as the case law reviewed in this article indicates. It is also supported by s 173 of the Constitution, which refers to the inherent powers of courts to protect and regulate their own process and to develop the common law, and by s 45(4) of the Children’s Act. Furthermore, the Superior Courts, as courts of record enable the development of a system of precedent-based child law, providing judicial reasons for all decisions, justifying the retention of the common law inherent jurisdiction of the high court as upper guardian of children. We therefore conclude that there is a residual role for the continued existence of the powers of the superior courts to act as upper guardians of the children within their jurisdiction, the constitutional bet interests standard notwithstanding.
|South African law journal
|Accepted/In press - 20 Nov 2023