THIS is the story of how a legal lobby group can make a difference – of interventions by the Centre for Child Law in two high-profile Constitutional Court cases, and the difference these interventions have made.
When the highest court delivered judgment in the case of Van der Burg against the National Director of Public Prosecutions (NDDP) last week, media coverage told how Hilda and Edward Van der Burg would lose their home.
They were using it as an illegal shebeen despite repeated warnings and raids by the police, causing serious problems for the whole neighbourhood.
The place would be forfeited to the state under the Prevention of Organised Crime Act (Poca), the Constitutional Court confirmed, because it was the means through which the couple had been committing crime.
Attentive readers may have been surprised to find a third party in court in addition to the couple and the NDPP.
“So what,” – you might have asked when you discovered this party’s involvement – “could the Centre for Child Law have to say on whether Poca applies or not?”
The Van der Burgs have three young children and the lobby group saw its role as ensuring their welfare was considered when a decision was made about confiscating the property.
It was as much the children’s home as it was a direct “instrumentality of the offence” committed by their parents. And if the house were taken away, what was to happen to the kids?
When its lawyers became involved in the Van der Burg case, however, the centre was adding to the foundation it had been building since its 2007 intervention in another Constitutional Court matter, M v S.
“M” was the single mother of three boys; she had an extensive criminal record and the centre wanted to ensure that the children’s right to family care was considered in the decision about whether she should go to jail.
The constitution says a child’s best interests are of paramount importance in every matter concerning the child.
Did that mean – asked the court when it heard M v S – that judges faced an additional responsibility in sentencing, either where the child was the offender or, as in the M v S case, where the child’s primary caregiver was to be sentenced? “Does the new constitutional order require a fresh approach to sentencing?” asked the court.
Although the courts had experience of applying the principle that the best interests of the child needed to be taken into account, the new constitution meant the scope of this principle was “greatly enlarged” and needed to take account of international law, for example.
Then, in a paragraph that could have been referring to the Van der Burg case, still five years in the future, the court added that the child rights section of the constitution “presupposes that the sins and traumas of fathers and mothers should not be visited on their children”.
Now a court had to approach sentencing in a new way, giving “sufficient, independent and informed attention” to the impact of any decision on children, and itself making enquiries and weighing the information that was obtained.
The centre’s input and questions in M v S helped to provoke new standards for how the court must approach sentencing where the accused is the primary caregiver of young children.
And the centre wanted to build on this principle in Van der Burg: it asked if the court had paid enough attention to what would happen to the children if the house – their home – were confiscated.
As a result of argument heard in the Van der Burg matter, the court developed new guidelines for Poca cases involving children.
The judges found that though the courts had properly considered the children in this case when deciding whether to confiscate the house, they had overlooked another problem: the possible impact of liquor and shebeen life on the children.
The judges thus ordered that the NDPP arrange for a special investigation by a social worker into the question of whether the children were at risk, with the possibility that this will lead to the intervention of the Children’s Court to ensure they have proper care and protection.
The law is often developed in this way, with the courts taking small steps as they consider the new facts of each case.
But when a lobby group such as the centre makes specialised input it may well help make these developments more quickly and more effectively.