C and Others v Department of Health and Social Development, Gauteng and Others

State social workers and municipal officials conducted a planned operation in Pretoria to remove children from adults found begging while accompanied by children. Without obtaining court orders, they removed the minor children of Mr C and Ms M and placed them in temporary safe care, without informing the parents where the children were taken. Mr C and Ms M, together with the Centre for Child Law, challenged the removals and sought urgent restoration of care and a declaration that sections 151 and 152 of the Children’s Act 38 of 2005 were unconstitutional insofar as they allowed removal and placement of children without automatic judicial review. The High Court granted partial relief and declared the provisions unconstitutional, referring the order to the Constitutional Court for confirmation.

The Constitutional Court confirmed the High Court’s declaration of constitutional invalidity of sections 151 and 152 of the Children’s Act to the extent that they fail to provide for automatic review by a children’s court of the removal and placement of a child in temporary safe care. The interim reading-in ordered by the High Court operated pending legislative correction.

This case is a leading authority on procedural safeguards in child protection matters. It affirms that emergency removal of children by the state must be subject to prompt judicial oversight to comply with section 28 of the Constitution. The judgment strengthened children’s rights and due process protections and influenced subsequent legislative and administrative practice in child welfare interventions.