When deeds speak: the Baby Savers case and harnessing legal expertise to strengthen South Africa’s social fabric

Access to justice is fundamental and those who are most vulnerable in society must not be left without a voice, says Deneys CEO Brent Botha, as he spoke with Africa Legal about why the leading South African firm has invested more than 1,600 hours of internal legal work at no cost to Baby Savers South Africa NPO and Door of Hope Children's Mission NPO, the applicants in a significant constitutional law case. 

“We believe that the true measure of our work lies not only in the outcomes we achieve for clients, but in the role we play in strengthening the social fabric of our country,” adds Botha, noting the sustained investment the firm has made over many years, both via its dedicated Social Impact team and across the entire firm. “We are immensely proud of our lawyers and staff who invest their time, expertise, and compassion into this work. It is not ancillary to what we do - it is core to who we are.”

That time, expertise, and compassion was on show earlier this month, as across 5-7 May a landmark constitutional hearing was held before a full bench of the High Court in Pretoria, challenging the Department of Social Development’s 2023 directive declaring life-saving Baby Saver mechanisms as illegal, and subsequent threats to cut funding to and close organisations who use them to provide safe relinquishment, on the basis such organisations were accomplices to criminal child abandonment. 

The Social Impact team at Deneys - which currently consists of four directors, a senior associate, two associates, two paralegals, and candidate attorneys who rotate through the team - has been working on the case on a pro bono basis over the past few years, in concert with Advocates Garth Hulley SC, Leigh Franck, Gillian Benson, and Orapeleng Peter Tholo. In 2024 they secured an interim court ruling, securing registration and funding for NPOs, and allowing them to continue using the baby saver devices, pending the outcome of the full constitutional challenge. 

Pro bono work is the responsibility of every lawyer, says Candice Pillay, the firm’s Head of Social Impact Law. Important cases such as Baby Savers would not be possible without lawyers giving their time and expertise at no cost; the two NPOs here had no resources to fund constitutional litigation of this magnitude. “At Deneys we take up the challenge of giving a voice to the voiceless in representing and advising the most vulnerable in our communities and those who serve them.”

The case, says Deneys, raises fundamental questions about the right to life under section 11 of the Constitution, children's rights under section 28, the State's positive obligations under section 7(2), and the gendered impact of the criminalisation of abandonment on vulnerable women. The strength of the applicants' case is underscored by unprecedented support of four amici curiae – the Centre for Human Rights (University of Pretoria), the Centre for Child Law, the Women's Legal Centre and The Deborahs 97:2 NPO – all of whom broadly support the applicants' position.

"This case asks a fundamental question about the purpose of our law,” said Deborah Raduba of the Centre for Human Rights, the week of the court hearing. “Where a caregiver takes steps to ensure a child’s safety, the law should recognise that act for what it is. Protecting life cannot be treated as a crime. If the law fails to draw that distinction, it risks punishing vulnerability instead of protecting children.” 

For Deneys, the constitutional law case is about saving lives. “Approximately 3,000 infants are unsafely abandoned in South Africa each year, and more than two-thirds do not survive. Baby Saver Boxes – simple, secure devices enabling the anonymous and safe relinquishment of infants – have saved approximately 580 infant lives to date. The second applicant, Door of Hope Children's Mission NPO, alone has received and saved 286 babies through its Baby Saver Box since 1999.”

While all involved now await the High Court’s judgment, the Deneys team, led by Nicola Irving on this matter, says they are optimistic that a compelling case has been made out for both the constitutional and administrative law relief sought. If successful, this case will set a precedent for the legislative regulation of safe relinquishment in South Africa and, potentially, across the African continent.

“It is a privilege to use my legal skills to represent clients in important constitutional law and human rights cases such as this,” says Irving, a public interest lawyer and rising star who was recently promoted to Senior Associate. “Many of our clients have been pushed into the margins of society by poverty and systemic inequality. Oftentimes, we are all they have, and the role we play extends far beyond that of legal advisor – we become, in many respects, part lawyer, part social worker and, at times, a trusted confidante and friend. That is a responsibility I do not take lightly.”

Irving says she is reminded daily of the weight and significance of pro bono work, particularly when vulnerable lives are at stake. In a deeply moving moment during the recent hearing, the legal team was visited by a member of Baby Savers South Africa NPO, who brought Baby N – a little girl safely relinquished through their Baby Saver Box just three months ago. She is a living testament to why this case matters. 

“I hope to continue using the privilege of my training – and the mentorship I have received – to advocate for and protect the rights of those who might otherwise go unheard,” says Irving. “Ultimately, I believe that ‘service to others is the best work of life’, and I feel fortunate to be a part of a firm that actively supports public interest law and recognises its role in strengthening the social fabric of South Africa.”