Naude and Another v Fraser

• Jurisdiction: South Africa
• Judge: Smalberger JA, Schutz JA, Scott JA, Plewman JA, Melunsky AJA
• Judgment Date: 26 June 1998
• Citation: 1998 (4) SA 539 (SCA)
• Docket Number: 150/97
• Hearing Date: 08 May 1998
• Counsel: NM Davis (with him CG Van Der Walt) for the appellants WH Trengove (with him M Chaskalson) for the respondent
• Court: Supreme Court of Appeal

Smalberger JA: D

Introduction

On 12 December 1995 the first appellant ('Ms Naude') gave birth to a baby boy. The child ('Timothy') was born out of wedlock. The respondent ('Mr Fraser') is Timothy's natural father. Ms Naude and Mr Fraser had E previously cohabited for some months, but their relationship broke up soon after Ms Naude became pregnant.

During her pregnancy Ms Naude decided to give up her unborn child for adoption. To this end she sought appropriate counselling in August 1995 from a registered social worker. Her decision was taken in what she perceived to be the best interests of the child. The second appellants ('the adoptive parents') were in due course F identified as suitable prospective adoptive parents and were approved as such by Ms Naude. The necessary pre-adoption procedures were thereupon set in motion.

Mr Fraser did not accept Ms Naude's decision to have her baby adopted. He consequently brought an urgent application in the Witwatersrand Local Division for an interdict to prevent the child, once born, from being G handed over for adoption. He also sought an order that the child be handed over to him. His application was dismissed with costs on 8 December 1995. The Court (Coetzee J) held that his lack of parental authority at common law deprived him of a prima facie right to an interdict. The judgment is reported - see Fraser v Naude H and Others 1997 (2) SA 82 (W).

Ms Naude requested that the prospective adoptive mother be present when she gave birth. The latter underwent medical treatment to enable her to breast feed the baby after birth, and effectively took charge of Timothy immediately after he was born. Timothy has been in the custody and care of the adoptive parents ever since. It I has never been suggested that they are anything other than eminently suited to care for him.

On 14 December 1995, two days after Timothy's birth, Mr Fraser's attorneys took the somewhat unusual step of writing to the Minister of Justice seeking, inter alia, an undertaking from him that their client would be afforded 'a proper opportunity of being heard at the adoption J

Smalberger JA

proceedings which are about to take place in the children's court'. A prompt reply was received from the A Minister. Not surprisingly no undertaking was forthcoming, but the Minister expressed the belief that Mr Fraser 'should at least be afforded the opportunity to be heard by the relevant commissioner'.

Proceedings relating to the adoption of Timothy commenced in the children's court, Pretoria North, on 27 B December 1995. They terminated, after various postponements, on 23 February 1996 when Mr Fraser was refused leave to intervene in the adoption application by the adoptive parents. What occurred on these occasions will be dealt with in greater detail later. On the same day the adoptive parents' application for the adoption of C Timothy was granted.

Mr Fraser launched a further application in the Witwatersrand Local Division on 24 February 1996 in which he claimed, inter alia, the disclosure of the identities of the adoptive parents, allegedly to enable him to interdict the D removal of Timothy from South Africa pending the outcome of contemplated appeal or review proceedings. The application was dismissed with costs.

Finally, on 11 March 1996, Mr Fraser initiated review proceedings in the Transvaal Provincial Division in which he sought, inter alia, the following relief (encompassed in respectively prayers 3 to 6 of the notice of motion): E

'3.

An order reviewing and setting aside the order for the adoption of Timothy Naude made on 23 February 1996.

4

An order declaring that the father of an illegitimate child is entitled to be heard on, and to participate in F any hearing of, an application for the adoption of his child in terms of the Child Care Act 74 of 1983.

5

An order declaring that s 18(4)(d) of the Child Care Act 74 of 1983 is inconsistent with the Constitution and invalid insofar as it does not require the father's consent for the adoption of an illegitimate child. G

6

An order declaring that the common-law rule that the guardianship of an illegitimate child vests in its mother and not in its father, is inconsistent with the Constitution and with the spirit, purport and objects of chap 3 of the Constitution.'

The matter came before Preiss J. He granted an order in favour of Mr Fraser setting aside the order for the H adoption of Timothy on the basis that the children's court commissioner ('the commissioner') had committed a gross irregularity in not affording Mr Fraser a proper hearing. The question as to whether s 18(4)(d) of the Child Care Act 74 of 1983 ('the Act') was inconsistent with the Constitution and invalid insofar as it dispensed with a I father's consent for the adoption of an illegitimate child was referred to the Constitutional Court for determination. Leave to appeal was granted to this Court. The judgment of the Court a quo is Fraser v Children's Court, Pretoria North, and Others 1997 (2) SA 218 (T). J

Smalberger JA

Jurisdiction A

At the commencement of his argument Mr Trengove, who appeared for Mr Fraser, raised the question whether this Court had jurisdiction to entertain the appeal. When the events giving rise to this appeal occurred, the Constitution of the Republic of South Africa Act 200 of 1993 ('the interim Constitution') applied. In Fedsure B Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others (a judgment of this Court in case No 328/97 delivered on 23 March 1998 and as yet unreported) [1] it was held (at p 9 of the judgment) that in terms of the interim Constitution any attack on any administrative action on the ground that such administrative action was not lawful fell within the jurisdiction of the Constitutional Court, and C for that reason outside the jurisdiction of this Court, because of the express provisions of s 101(5) of the interim Constitution (see also Rudolph and Another v Commissioner for Inland Revenue and Others 1996 (2) SA 886 (A)).

The short answer (as suggested by Mr Trengove himself) would seem to be that adoption proceedings are dealt D with by a children's court in the exercise of its judicial function; at the very least adoption proceedings are sui generis, having a judicial component and not being purely administrative in nature. (Napolitano v Commissioner of Child Welfare, Johannesburg, and Others 1965 (1) SA 742 (A) at 745F; Ex parte Commissioner of Child Welfare, Durban: In re Kidd 1993 (4) SA 671 (N) at 673B--C.) Such proceedings E are therefore unaffected by the decision in the Fedsure case. In any event, this Court now has constitutional jurisdiction in terms of the provisions of the Constitution of the Republic of South Africa Act 108 of 1996 ('the new Constitution'). In terms of item 17 of Schedule 6 to the new Constitution 'all proceedings which were F pending before a court when the new Constitution took effect, must be disposed of as if the new Constitution had not been enacted, unless the interests of justice require otherwise'. This Court may therefore assume a constitutional jurisdiction it would not otherwise have had if the interests of justice require it to do so. It is not necessary to consider the precise meaning of that phrase in the context of the present matter. Mr Trengove G submitted, and I agree, that the interests of justice, which would, as a primary consideration, encompass the interests and well-being of Timothy, require this Court to hear and dispose of the appeal.

The common-law position of an unmarried father H

This Court recently re-affirmed in B v S 1995 (3) SA 571 (A) at 575G--H that

'in Roman-Dutch law an illegitimate child fell under the parental authority, and thus the guardianship and custody, of its mother; the father had no such authority'. I

As a consequence, current South African law does not accord a father an inherent right of access to his illegitimate child. It does, however, J

Smalberger JA

recognise that access is available to the father if that is in the child's best interests (B v S at 583G--H; see also T A v M 1997 (1) SA 54 (A)).

The common-law rules referred to may require reconsideration having regard to the provisions of the new Constitution relating to, inter alia, equality (s 9), the rights of a child (s 28) and the requirement that a court, B when developing the common law, 'must promote the spirit, purport and objects of the Bill of Rights' (s 39(2)). This, however, is not something which need concern us further in the present appeal.

The constitutionality and applicability of s 18(4)(d) of the Act

Section 18(4)(d) of the Act requires only the consent of the mother of an illegitimate child for the adoption of the C child. The validity of this provision, following on the referral by the Court a quo, was determined by the Constitutional Court in Fraser v Children's Court, Pretoria North, and Others 1997 (2) SA 261 (CC). That Court held (at 272 para [21]) that the section offended s 8 of the interim Constitution because it impermissibly D discriminated between the rights of a father in certain unions and those in other unions. For trenchant reasons that appear from paras [47]--[49] of the judgment (at 282--3), the Court held that it could not simply sever certain words from the section and declare them invalid, nor could it simply declare the whole of s 18(4)(d) of the Act to be invalid without invoking the proviso to s 98(5) of the interim Constitution. It accordingly made the following E order:

'1.

It is declared that s 18(4)(d) of the Child Care Act 74 of 1983 is inconsistent with the Constitution of the Republic of South Africa Act 200 of 1993 and is therefore invalid to the extent that it dispenses with the father's...