NGCOBO J
[72] Section 28(2) must be interpreted so as to promote the foundational values of
human dignity, equality and freedom.61 These founding values are given effect in the
Bill of Rights, which is the cornerstone of our constitutional democracy. Section
28(2), which is part of the Bill of Rights, protects the dignity of the child and advances
the child’s equal worth and freedom by proclaiming that “[a] child’s best interests are
of paramount importance in every matter concerning the child.” The reach of section
28(2) extends beyond those rights enumerated in section 28(1): it creates a right that is
independent of the other rights specified in section 28(1).62 But as we said in S v M,
“the fact that the best interests of the child are paramount does not mean that they are
absolute. Like all rights in the Bill of Rights their operation has to take account of
their relationship to other rights, which might require that their ambit be limited.”63
[73] It is neither necessary nor desirable to define with any precision the content of
the right to have the child’s best interests given paramount importance in matters
concerning the child. It is, as we put it in Sonderup, “an expansive guarantee” that a
child’s best interests will be paramount in all matters concerning the child.64 This
provision thus imposes an obligation on all those who make decisions concerning a
61
Section 39(1)(a) provides:
“When interpreting the Bill of Rights, a court, tribunal or forum—
(a)
must promote the values that underlie an open and democratic society based
on human dignity, equality and freedom”.
62
Minister of Welfare and Population Development v Fitzpatrick and Others [2000] ZACC 6; 2000 (3) SA 422
(CC); 2000 (7) BCLR 713 (CC) at para 17.
63
S v M [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC) at para 26.
64
Sonderup v Tondelli and Another [2000] ZACC 26; 2001 (1) SA 1171 (CC); 2001 (2) BCLR 152 (CC) at para
2.
38
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