Making the best of the best interests: A commentary of AB v Pridwin Preparatory School

Abstract

The best interests of the child is a key concept in children’s rights law, which is domesticated in part through its expression in s 28(2) of the Constitution of the Republic of South Africa. This concept is not easy to apply due to its complexity and indeterminate nature. In contrast, a child’s right to participate, another important children’s right, is not included s 28 or elsewhere in the Constitution. The Constitutional Court’s decision in AB v Pridwin Preparatory School addressed the important issue of the horizontal application of the Constitution. However, it is the concurring judgment of Khampepe J, which addressed both the best interests of the child and participation in a manner that directs the application of the former and provides a basis for the constitutionalisation of the latter. This note engages with Khampepe J’s judgment to examine its contribution to the substantive application of children’s rights in South Africa, namely, making the best of the best interests of the child by using participation.