Advise Sindy on how the Constitution of the Republic of South Africa 1996, gives priority to the rights of children codified in section 28

Sindy has been appointed to the position of Family Advocate in High Court of South Africa. Part of Sindy’s duties is to determine the custody of minor children in divorce litigation , and to compile reports on other legal matters involving monor children. With your knowledge of social security law, fully advise Sindy on how the Constitution of the Republic of South Africa 1996, gives priority to the rights of children codified in section 28.

How the Constitution of the Republic of South Africa 1996, gives priority to the rights of children

The Constitution of the Republic of South Africa, 1996, gives clear priority to the rights of children under section 28, which is directly relevant to Sindy’s duties as a Family Advocate in custody and legal matters involving minor children.

1. Best interests of the child (Section 28(2))

Section 28(2) provides that “a child’s best interests are of paramount importance in every matter concerning the child.”
This means that every recommendation Sindy makes—whether about custody, visitation, or parental responsibilities—must put the child’s needs and wellbeing first. In divorce cases, Sindy cannot prioritise the preferences of the parents over the child’s safety, stability, and developmental needs.

2. Right to family or parental care (Section 28(1)(b))

This section gives every child the right to “family care or parental care, or to appropriate alternative care when removed from the family environment.”
Sindy must ensure that any decision about custody results in the child receiving consistent care. If neither parent is fit, she must recommend appropriate alternative care, such as placement with extended family or foster care. Her reports must assess each parent’s ability to provide care, both emotionally and practically.

3. Right to basic nutrition, shelter, healthcare, and social services (Section 28(1)(c))

This clause gives children specific socioeconomic rights. In practice, Sindy must evaluate whether the parent seeking custody can provide food, shelter, medical care, and access to social services. These needs are not optional—they are constitutionally protected, and failure to secure them can justify recommending custody to another caregiver or the state.

4. Protection from maltreatment and neglect (Section 28(1)(d))

Sindy must consider whether any parent poses a risk of abuse, neglect, or degradation. This includes physical violence, emotional harm, and unsafe living conditions. If abuse is suspected, Sindy must advise the court to restrict contact or deny custody, in line with the Constitution’s obligation to protect children.

Conclusion

Section 28 of the Constitution places a constitutional duty on Sindy to prioritise the rights and best interests of the child in all custody and legal matters involving minors. Her role is not only legal but also constitutional in nature, and every action she takes must align with the protections and priorities outlined in section 28.