Main Issue: Right to equality/ Same sex parents

Findings: This case concerns the constitutionality of certain provisions of the Children’s Status Act of 1987 (the Status Act), which, among other things, defines the status of children conceived by artificial insemination. Unanimous judgment by Goldstone J held that section 5 of the Children’s Status Act was found to be unconstitutional as it violated the right to equality. It allowed for married couples to become joint parents of a child born to them as a result of artificial insemination, but it did not allow same sex partners to become joint parents to a similarly born child. As such discrimination was based solely on the sexual orientation of the couple, it cannot be justified. Therefore, Court confirmed that the section is inconsistent and ordered that it should be read to provide the same status to children born from artificial insemination to same sex permanent life partners.

Main Issue:  Challenging the constitutionality of the offence of child pornography and considerations of freedom of expression and privacy

Findings: Mr De Reuck has been charged with possessing and importing child pornography. The Court found that the criminalization limits the right to freedom of expression and privacy. However, the Court has found that the limitation of the rights claimed is reasonable and justifiable. Its purpose is to curb child pornography which is seen as an evil in all democratic societies. The Court concluded that the state has established three legitimate objectives which the limitation aim to serve, namely, protecting the dignity of children, stamping out the market for photographs made by abusing children and preventing a reasonable risk that images will be used to harm children. Mr De Reuck has been charged with possessing and importing child pornography. The Court found that the criminalization limits the right to freedom of expression and privacy. However, the Court has found that the limitation of the rights claimed is reasonable and justifiable. Its purpose is to curb child pornography which is seen as an evil in all democratic societies. The Court concluded that the state has established three legitimate objectives which the limitation aim to serve, namely, protecting the dignity of children, stamping out the market for photographs made by abusing children and preventing a reasonable risk that images will be used to harm children. Moreover, section 22 of the Act makes provision for an exemption procedure which permits research into child pornography if good cause is shown. Court dismissed the appeal on these grounds.

Main Issue: Child of alien parents (asylum seekers)/ A Zimbabwean mother and her disabled son challenging the Refugees Act which generally prohibited employment/studying pending the finalisation of an asylum application.

Findings: Court held that prohibition is in conflict with the Bill of Rights of the Constitution (human dignity) especially as it is a general prohibition without guidelines or case by case considerations.

Main Issues: Child’s right to parental care under section 28(1)(b) of the Constitution.

Findings: This case covered the child’s right to parental care as provided for in section 28(1)(b), but from rather a novel angle. Plaintiff was child and defendant was biological father. The action was based on delict, that the child alleging the result of the father’s neglect (child is cold shouldered by his father) of the child’s life in general had made him suffer damage in the form of an iniuria, emotional distress and loss of amenities of life. At the core, therefore, was the argument that the defendant, as father, was under a legal duty to render the plaintiff love and attention. Court reasoned that since the father was not a parent within the meaning of the words “parental care” of section 28(1)(b) and also because the law cannot enforce the impossible (it cannot create love and affection where there is none) and held that there was no legal duty to afford plaintiff love and where there is no legal duty, there was no remedy.

Main issues: Death penalty

Findings: The facts of the case, in which Makwanyane had been sentenced to death, were not directly relevant: the core issue was what bearing the interim Constitution had on the death penalty. Did the death penalty violate sections 9, 10 and 11(2), which guaranteed every individual the right to life, the right to dignity and the right to be free from torture and cruel punishment? In its judgment, the Court unanimously found that the death penalty was indeed unconstitutional.