Accepted paper:

African children in a legal vacuum


Jan Bekker (University Pretoria)

Paper short abstract:

The legal and policy frameworks to protect the rights of vulnerable children in the family context will be discussed.

Paper long abstract:

Since customary marriages are formalised in terms of the Recognition of Customary Marriages Act 120 of 1998 there is, on paper at least, no problem about the status of children in such marriages. There is a father and mother (the latter no longer inferior to the father) from whom they derive their status and rights and duties. Likewise, in civil marriages the status of the children is cut and dried.

Traditionally the legal status of children was regulated in the finest detail always from the point of departure that a child invariably belongs to a family. In Eurocentric language one could say that each and every child was under the guardianship and custody of a family head, mostly a male. However, as a result of urbanisation and disintegration of family life, things have fallen apart. The number of children left without parents nor belonging to a family is staggering. It has been reported that in 2009 two million school children lost both parents. About three million receive social grants.

I propose to discuss the legal status of these children in view of the conflicting predominant common (Roman-Dutch) law and customary law, pointing out that the dichotomy between the two systems has left many children in a legal void. The South African case will be compared with the situation in Namibia, Botswana and Swaziland, where Roman-Dutch law was also inherited alongside of customary law.

panel G39
Makers, brokers, breakers: children and young people in legally plural worlds (IUAES Commission on Legal Pluralism)