Jooste v Botha 2000 (2) BCLR 187 (T)

Main Issues: Child’s right to parental care under section 28(1)(b) of the Constitution.

Findings: This case covered the child’s right to parental care as provided for in section 28(1)(b), but from rather a novel angle. Plaintiff was child and defendant was biological father. The action was based on delict, that the child alleging the result of the father’s neglect (child is cold shouldered by his father) of the child’s life in general had made him suffer damage in the form of an iniuria, emotional distress and loss of amenities of life. At the core, therefore, was the argument that the defendant, as father, was under a legal duty to render the plaintiff love and attention. Court reasoned that since the father was not a parent within the meaning of the words “parental care” of section 28(1)(b) and also because the law cannot enforce the impossible (it cannot create love and affection where there is none) and held that there was no legal duty to afford plaintiff love and where there is no legal duty, there was no remedy.