Failing children : the courts disregard of the best interests of the child in Le Roux v Dey

CITATION: Mills, L. 2014. Failing children : the courts' disregard of the best interests of the child in Le Roux v Dey. South African Law Journal, 131(4):847-864.The original publication is available at https://journals.co.za/content/journal/ju_saljThe concept of the best interests of the child is firmly entrenched in international law, the South African Constitution and South African legislation and jurisprudence. The Committee on the Rights of the Child has recently declared that it is a threefold concept existing as a substantive right, a fundamental interpretative legal principle, and as a rule of procedure. The best interests of the child should be considered, at least, in all matters concerning children. Yet, in the matter of Le Roux v Dey, where three boys were defending a delictual claim of defaming their school vice-principal, the judges of the High Court and the Supreme Court of Appeal, and eight of the ten presiding judges of the Constitutional Court did not even mention the best interests of the child. The article explores some of the possible reasons for this failure and offers some recommendations as to what a more preferable approach would have been in the circumstances.Publishers versio