SCA UPHOLDS CHILDREN'S RIGHTS TO PARTICIPATION IN PUBLIC INTEREST LITIGATION
On 08 October 2015 the Supreme Court of Appeal handed down judgment that will affect the protection of children's rights when they are participating in public interest litigation. It is also an important judgment for all vulnerable groups of people whose rights of privilege and confidentiality are protected through public interest litigation.
The judgment arises from a case involving a group of 37 English-speaking learners who were placed in Hoerskool Fochville, An Afrikaans sing-medium school, by the Department of Basic Education, due to a shortage of spaces available in other English schools in the area.
Hoerskool Fochville opposed the decision by the Department to enrol these learners and took the Department to court. The CCL, assisted by the LRC, represented the learners so that their views could be expressed to the court. As part of this process, the CCL and LRC requested the children fill in questionnaires about their experiences at the school on the basis that they would be dealt with anonymously.
The school demanded to see the questionnaires but the CCL refused to hand them over. The matter was taken to the Johannesburg High Court, which found against the CCL and ordered the CCL allow the school to inspect the original questionnaires. The High Court also gave a cost order against the CCL. The CCL and LRC appealed the decision to the SCA.
The SCA found, amongst other things, that the right of children to representation, separate from their parents, flows from their right to participate in all matters that affect them. The SCA found that the High Court did not attach sufficient weight to the rights of the children.
The SCA overturned the decision of the High Court and the CCL does not have to disclose the questionnaires to the school. Furthermore, the costs order has been reversed.
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