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Resource constraints and a child's right to legal representation in civil matters at state expense in South Africa

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Section 28(1)(h) of the South African Constitution bestows the right on every child to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result. Section 28(1)(h) places a positive duty on the state and the practical implementation of this right is dependent on the state's available resources. is paper enquires whether the criteria laid down by the South African Legal Aid Board may limit the realisation of s 28(1)(h) and if so, to what extent. It includes the question whether it is constitutionally permissible for the state to deny legal representation to children on the exclusive grounds of resource constraints. I commence by examining similar but not exact provisions in the Convention of the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) to establish whether there are provisions that may inform the extent of the positive duty on the state to provide legal representation at state expense to children. is will be followed by a discussion on the nature and extent of s 28(1)(h) of the Constitution. I then turn to the relevant sections in the Children's Act pertaining to this right and especially s 55 which makes provision that the Legal Aid Board is the appropriate functionary of the state to deal with the realisation of s 28(1)(h). I finally enquire whether the criteria laid down in the Legal Aid Guidelines, 2009 (which include the argument of resource constraints) may justifiably limit this right.

Affiliations: 1: Professor of Law, North-West University (Potchefstroom campus)


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