This year has once again seen the courts in our country making life a bit easier for people – from parents who can now both apply for maternity leave, mothers and children who can obtain free medical assistance, to helping prisoners being able to study while behind bars.
The courts also did not forget those who are stateless, as it assisted a boy born nearly four years ago who will for the first time officially have a name and legal standing in South Africa after red tape had denied him this right up to now.
The parents of the child – who are not identified as he is a minor – did everything asked of them by the Department of Home Affairs to register the birth of their child.
They even underwent a compulsory paternity test. Yet, they received no help in their desperate bid for their child to have an identity.
The parents have been in a permanent relationship since August 2009 and moved in together at the end of 2016. While discussing marriage, they elected to wait until after the child’s birth to start the lobola negotiations.
When the child was born in September 2019, the parents agreed that the child would have the father’s surname. Within 30 days of the birth, they completed the birth form.
This was the start of their bureaucratic nightmare as they were told by Home Affairs that they needed a paternity test as the child was born out of wedlock and the father was Zimbabwean.
The test was done the following month, and the couple were told by the National Health Laboratory Service that the test results would be available in four to six weeks.
After six weeks, they followed up and were told that the results went directly to the department.
From December 2019 to March 2020, the parents visited the department weekly to follow up, with no luck.
Nearly a year later, in May 2021, the parents were told that there was no information on the system and that the department could not assist them.
Desperate for their child to have an identity, they turned to the Gauteng High Court, Pretoria.
Meanwhile, the child had no officially recorded name. He could not get legally vaccinated nor registered on medical aid. The child also could not attend a crèche or play school, and he could not travel to meet his family in Zimbabwe.
The court was told that he thus was excluded from the education system and from accessing social assistance and health care or exercising his civil rights in obtaining a passport.
In this case, the child’s situation was further exacerbated by the fact that the father is not a South African citizen.
As the law stands, if the parents were married, they would not be required to provide a paternity test.
But the court had put its foot down and ordered Home Affairs to register the child’s birth – a step which changed the little boy’s life.
The lives of parents of newly borns were also changed this year when the court ruled that both parents are entitled to maternity leave.
Gauteng High Court, Johannesburg, Deputy Judge President Roland Sutherland concluded that the provisions of the Basic Conditions of Employment Act regulating parental leave, unfairly discriminated against various types of parents.
He also found that it was contrary to the interests of the child and impaired the dignity of parents and their children.
Judge Sutherland concluded that the provisions of the act regulating parental leave did offend against sections 9 and 10 of the Constitution as they unfairly discriminate between mothers and fathers, and unfairly discriminate between parents depending on whether their child was born of the mother, conceived by surrogacy or adopted.
He accordingly declared these provisions unconstitutional and invalid.
The declaration of constitutional invalidity was suspended for two years, so that remedial legislation could be enacted by Parliament, pending which the offending provisions of the act were amended to provide, in the interim, for a new regime.
This means that parents in a natural birth arrangement could elect which parent would take the whole four-month parental leave period, or they could freely allocate that four-month period between them.
Parents adopting a child younger than 2 years and parents in a commissioning parent arrangement would be entitled to the same leave regime as that was now applicable to parents to a natural birth.
This was to allow all parents (save for those adopting a child older than 2 years) to benefit equally from parental leave provisions and the associated UIF benefits.
This is said to alleviate the plight of, particularly, birth mothers who were previously obliged to assume the role of primary caregiver, thereby sacrificing employment and economic opportunities.
The interim relief also allows all parents greater flexibility in how they choose to care for their children.
Although the Commission for Gender Equality had asked the court to extend parental leave provisions to adoptions involving children older than 2, the court found that this went too far and that the discrimination against such adopted children and their parents was not unfair.
The Commission for Gender Equality had also asked the court to remedy the discrimination between parents by providing four months’ leave for both parents.
The court, however, found that given the wide range of remedies available to Parliament, the most appropriate remedy was not to grant equal four months’ leave to both parents, but to allow them the choice of how they chose to arrange their parental leave entitlement.
Another legal ruling to assist mothers and children was made by the Gauteng High Court, Johannesburg, this year when it upheld the right of all pregnant and lactating women and children under 6 to access free health services at all public health establishments, including hospitals.
This is irrespective of their nationality and documentation status.
It was ordered that the Gauteng regulations and a policy, introduced by the Gauteng Department of Health in 2020, which denied free health-care services to pregnant and lactating women and young children who are asylum seekers, undocumented, or persons affected by statelessness, are declared unlawful.
The Gauteng Department of Health was ordered to amend its policy by October 16 this year.
It was also declared that any other similar policies or circulars that prevent pregnant and lactating women and children under 6 from accessing free health services are declared inconsistent with the National Health Act and are invalid.
The court included two orders designed to disseminate and increase the awareness of the court order – by no later than May 15, the national Health Department had to issue a circular to all provincial Health Departments, recording that all pregnant and lactating women and children under 6 (who are not members or beneficiaries of medical aid schemes, and who have not come to South Africa for the specific purpose of obtaining health care) are entitled to free health services at any public health establishment.
The department was ordered to, by no later than July 17, direct the display of posters or notices at all health establishments in all the provinces. These posters had to make it clear that all pregnant and lactating women, as well as all children below 6, are entitled to free health services at any public health establishment, irrespective of their nationality or documentation status.
The court made it clear that this is only for those who do not have medical aid and who have not come to the country with the specific aim of receiving medical care.
The order followed an application lodged by Section27, together with two women denied access to free health services while pregnant and one whose child was under 6 who was denied free health services.
Prisoners were also not forgotten this year, as the Supreme Court of Appeal ruled that they can use their personal laptop – minus a modem – in their cells to study.
The Supreme Court ordered that within 12 months from the date of the order, the Department of Correctional Services must, after consultation with the Judicial Inspectorate for Correctional Services, prepare and promulgate a revised policy for correctional centres permitting the use of personal computers in cells for study purposes.
In its reasoning, the court held that the provision of the policy that prohibits the use of personal computers in cells infringes the rights of prisoners to further education.
The court also ordered that, pending the revision of the education policy, inmate Mbalenhle Ntuli, who earlier turned to court with the assistance of Lawyers for Human Rights, as well as other prisoners, are entitled to use their personal computers in their cell, without an internet connection, for as long as they remain registered with a recognised tertiary or further education institution in South Africa.
Ntuli is serving a 20-year sentence for robbery and has enrolled at an academy to do a data processing course.
In September 2019, the high court handed down judgment in favour of the inmate. The court found that the department’s policy (of not allowing computers in cells) unfairly discriminated against prisoners and that it was an unjustifiable limitation of the right to further education of incarcerated persons, and therefore, inconsistent with the Constitution.
Minister of Justice and Correctional Services Ronald Lamola and his department, however, took the matter on appeal.They raised security concerns and said inmates had a designated study room where they could use their computers
On the other hand, it was argued on behalf of the inmate that the study room was noisy and open for limited hours.
Judge David Unterhalter, who wrote the concurring judgment, commented that Ntuli’s case was that his right to further education should permit him to make use of the many hours when he is confined in his cell to study.
“That Mr Ntuli may have been able to pass his course with limited access to a computer is a credit to him, but it does not serve to justify why he should not be permitted to benefit from the access he seeks to study further…,” the judge said in turning down the appeal.
Pretoria News