Theses and Dissertations (Centre for Child Law)

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    Children and Medical Decision Making
    (University of Pretoria, 2020-10-30) Ozah, Karabo; s.bezuidenhout@up.ac.za; Bezuidenhout, Stefanie
    The Constitutional Court judgments of Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another 2014 (1) SACR 327 (CC) and Centre for Child Law and Others v Media 24 Ltd and Others 2020 (1) SACR 469 (CC) have set important precedents for a child’s autonomy and privacy. Two requirements are put forth in the Children’s Act 38 of 2005 for when a child may consent to his or her own medical treatment. The first requirement is the age of consent. A child aged 14 and older was allowed to consent to his or her own medical treatment and his or her surgery at 18 years without parental consent under the now repealed Child Care Act 74 of 1983. The Children’s Act however reduced this age of consent for both medical treatment and surgery and section 129 of the Children’s Act states that a child can consent to his or her own medical treatment without parental assistance at the age of 12. The second requirement is the maturity of the child which entails his or her ability to understand the nature of the medical procedure and the risk and consequence of giving consent to it. If one of the two requirements is not met, then consent may be obtained from the parent or guardian or caregiver of the child, the Superintendent of the hospital or the person in charge of the hospital, the Minister of Social Development or a High Court or Children’s Court.
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    Critical reflection of the application of 'reasonable chastisement' in South Africa : a case analysis of Freedom of Religion South Africa v Minister of Justice and Constitutional development
    (University of Pretoria, 2020) Hansungule, Michelo; cmfrtkgothatso@gmail.com; Phasha, Comfort Raisibe
    In Christian Education South Africa v Minister of Education, the Constitutional Court upheld the law that prohibited the use of corporal punishment in schools. The decision was primarily premised on protecting children against all forms of violence from a public source. Recently, the same Court in Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others has abolished the defence of reasonable chastisement that was available at common law to parents when administering corporal punishment to discipline recalcitrant children. The effect of the decision is that parents no longer have a defence if they are charged with Assault as a result of Corporal Punishment. The decision has far-reaching consequences as; on the one hand, it unfairly curtails parents’ rights of discipline against their children and seeks to dictate to parents on how to discipline their children. On the other hand, the decision places the rights of children as being of paramount importance in every matter concerning the child. The study employs the doctrinal method which is “desktop-based”, and uses primary and secondary sources, such as case law, statutes, articles and books. The findings of this study are that the defence of reasonable chastisement infringes on the rights of children afforded to them by both the Constitutional law and international instrument. Outlawing Corporal Punishment serves as a great step towards fighting the battle of domestic violence. The Constitutional Court Judgment is not the end of it all; parents must be taught of other alternative way to disciples children. It is of crux to note that discipline is the essential part of parenting and it will be detrimental to raise children without discipline.