NGCOBO J
child to ensure that the best interests of the child enjoy paramount importance in their
decisions. Section 28(2) provides a benchmark for the treatment and the protection of
children.
[74] Courts are now obliged to give consideration to the effect that their decisions
will have on the rights and interests of the child. The legal and judicial process must
always be child sensitive.65 As we held in S v M, statutes “must be interpreted . . . in
a manner which favours protecting and advancing the interests of children; and that
courts must function in a manner which at all times shows due respect for children’s
rights.”66 Courts are bound to give effect to the provisions of section 28(2) in matters
that come before them and which involve children.
Indeed, section 8(1) of the
Constitution makes it plain that the Bill of Rights “binds the legislature, the executive,
the judiciary and all organs of state.”
[75] In the course of argument, we were referred to international and regional
instruments on the protection of the child. International and regional instruments are
relevant considerations because section 39(1)(b) of the Constitution requires us to
“consider international law” when interpreting a provision in the Bill of Rights, such
as section 28(2). In addition, under section 233, when interpreting any legislation, as
we are called upon to do in these cases, we are required to prefer “any reasonable
interpretation of the legislation that is consistent with international law”. International
law therefore provides a useful interpretative tool in the interpretation of the rights in
65
Above n 63 at para 15.
66
Id.
39
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