Jooste v Botha

The plaintiff, an 11-year-old boy assisted by his mother and guardian, sued the defendant, his alleged natural father, for damages of R450 000. The child was conceived after intercourse between the mother and the defendant in June/July 1987. The parties were never married and there was no allegation that they had cohabited. The child was in the factual and legal custody of his mother. The particulars of claim alleged that since the child's birth the defendant had refused or neglected to acknowledge him as his natural son, communicate with him, show him love, cherishment, recognition or interest, or take steps naturally expected of a father. The plaintiff claimed damages for iniuria, emotional distress and loss of amenities of life, contending principally that section 28(1)(b) of the Constitution gave him a right to 'parental care' enforceable against the defendant, and that the common law should be developed under section 8(3) to provide a delictual damages remedy.

• Whether the particulars of claim disclosed a cause of action against the defendant.
• Whether section 28(1)(b) of the Constitution creates a horizontally enforceable right by a child against a natural father to receive love, affection, attention, recognition and interest.
• Whether the word 'parental care' in section 28(1)(b) includes a non-custodian parent or the natural father of a child born out of wedlock.
• Whether section 8(3) required the court to develop the common law to recognise a delictual damages claim for failure to provide non-economic parental care.
• Whether section 28(2), providing that a child's best interests are of paramount importance, supports such a private law claim.
• Whether public policy and the nature of the alleged right permit its recognition as a legal duty enforceable by damages.

The exception was upheld with costs. The plaintiff's claim was dismissed with costs, including the costs of two counsel.

Section 28(1)(b) of the Constitution contemplates a child being cared for by a person who has custody and primarily creates vertical socio-economic obligations on the State to establish, protect and foster that caregiving environment. The term 'parental care' refers to a custodian parent and does not include a non-custodian parent or the natural father of a child born out of wedlock who lacks custody. The Constitution therefore does not create a new delictual cause of action enabling a child to claim damages from such a father for failure to provide love, affection, attention or recognition. Section 28(2) is a general guiding principle and not, in this context, a directly horizontally enforceable rule creating such liability.

The court observed that while the best interests of the child demand an environment of love, affection and consideration, the law does not attempt to enforce the impossible by compelling love. It also remarked that an expansive horizontal reading of section 28(2) would produce absurd consequences, such as overriding legitimate interests of parents, siblings, employers and the State in a wide range of contexts. The judge further commented critically on the institution of the action by the mother, suggesting the litigation and publicity were not in the child's interests.

The case is significant for its restrictive interpretation of section 28(1)(b) in the early constitutional era. It held that the child's right to family or parental care is primarily a vertical right enforceable against the State and does not, without more, create a delictual claim by a child against a non-custodian natural father for lack of love, affection or emotional involvement. The judgment also illustrates judicial caution in extending constitutional children's rights into horizontally enforceable private-law duties in the sphere of intimate family relationships.