Du Toit and Another v Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae)

• Jurisdiction: South Africa

Du Toit and Another v Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae)
2003 (2) SA 198 (CC)

2003 (2) SA p198

Citation	2003 (2) SA 198 (CC)
Case No	CCT 40/2001
Court	Constitutional Court
Judge	Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Kriegler J, Madala J, Ngcobo J, O Regan J, Sachs J, Du Plessis AJ and Skweyiya AJ
Heard	May 9, 2002
Judgment	September 10, 2002
Counsel	P Ginsburg SC (with him M Chaskalson) for the applicants.; No appearance for the respondents.; P R Jammy (with him K Pillay) for the amicus curiae.; P Stais as the curator ad litem.

Flynote : Sleutelwoorde D

Constitutional law — Legislation — Validity of — Sections 17(a), 17(c) and E 20(1) of the Child Care Act 74 of 1983 — Section 17 not providing for permanent same-sex life partners to jointly adopt children — Such depriving children of possibility of loving and stable family life as required by s 28(1)(b) of the Constitution of the Republic of South Africa Act 108 of 1996 — Such provisions of Child Care Act failing to accord paramountcy to the best interests of children and in conflict with the F Constitution.

Constitutional law — Legislation — Validity of — Section 1(2) of the Guardianship Act 192 of 1993 — Premised on assumption that permanent same-sex life partners cannot be joint guardians of children — Such assumption arising from s 17 of Child Care Act — For same reasons that s 17 in conflict with Constitution of the Republic of South Africa Act 108 of 1996, s 1(2) in conflict with Constitution. G

Constitutional law — Human rights — Right to dignity — Section 10 of the Constitution of the Republic of South Africa Act 108 of 1996 — Legislation not providing for joint adoption of children by permanent same-sex life partners — Failure of law to recognise value and worth of applicant as parent to siblings demeaning and limiting applicant's H right to dignity.

Constitutional practice — Application to Constitutional Court for confirmation of order of constitutional invalidity of statutory provisions concerning adoption of children — Where risk of injustice existing, Court obliged to appoint curator ad litem to represent interests of I children.

Headnote : Kopnota

The applicants, partners in a long-standing lesbian relationship, wanted to adopt two children jointly. Legislation confined the right to adopt children jointly to married couples. The applicants challenged the validity of ss 17(a), 17(c) and 20(1) of the Child Care Act 74 of 1983 and s 1(2) of the J

2003 (2) SA p199

Guardianship Act 192 of 1993 in a Provincial Division of the High Court. It was found that the A said legislation violated the Constitution of the Republic of South Africa Act 108 of 1996 and ordered the reading in of certain words into the impugned provisions so as to allow for joint adoption and guardianship of children by permanent same-sex life partners. The applicants in the present matter sought confirmation of such High Court order in terms of s 172(2)(a) of the Constitution. B

Held, that where the interests of children were at stake it was important that their interests were fully aired before the Court so as to avoid substantial injustice to them and possibly others. Where there was a risk of injustice, a court was obliged to appoint a curator to represent the interests of children. (Paragraph [3] at 201G.)

Held, further, that s 17 of the Child Care Act did not C provide for the joint adoption of children by partners in a permanent same-sex relationship. (Paragraph [9] at 203E.)

Held, further, that excluding partners in same-sex life partnerships from adopting children jointly where they would otherwise be suitable to do so was in conflict with the principle enshrined in s 28(2) of the Constitution, ie that 'a child's best interests are of paramount importance in every matter concerning the child'. (Paragraph [22] at 208B.) D

Held, further, that the impugned provisions of the Child Care Act thus deprived children of the possibility of a loving and stable family life as required by s 28(1)(b) of the Constitution. (Paragraph [22] at 208C.) E

Held, further, that the said provisions of the Child Care Act failed to accord paramountcy to the best interests of the children and was inconsistent with the Constitution and invalid to the extent of such inconsistency. (Paragraphs [22], [25] and [26] at 208C/D - D and 209B - C.) F

Held, further, that s 1(2) of the Guardianship Act did not contemplate that same-sex life partners would be joint guardians of children. (Paragraph [13] at 204D/E - E.)

Held, further, that the failure by the law to recognise the value and worth of the first applicant as a parent to the siblings was demeaning and that the impugned provisions limited the first applicant's right to dignity. (Paragraph [29] at 210D - D/E.)

Held, further, that the provisions of the Guardianship Act G were premised on the assumption that same-sex life partners could not be joint guardians of children. Such assumption arose from s 17 of the Child Care Act and for the same reasons that s 17 was in conflict with the Constitution, s 1(2) of the Guardianship Act was in conflict with the Constitution. (Paragraph [30] at 210F - G.) H

Held, further, that the limitations of the rights to equality, dignity and the paramountcy of the best interests of children in cases concerning them were not justifiable. (Paragraph [37] at 212F - F/G.)

Held, accordingly, that the application for confirmation of the order of the High Court had to be granted. (Paragraph [42] at 214A/B - B.)

Cases Considered

Annotations

Reported cases I

Brink v Kitshoff NO 1996 (4) SA 197 (CC) (1996 (6) BCLR 752): referred to

Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) (2000 (10) BCLR 1051): referred to J

2003 (2) SA p200

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) (2000 (8) BCLR 837): referred to A

Du Toit and Another v Minister of Welfare and Population Development and Others 2001 (12) BCLR 1225 (T): order in confirmed

East Zulu Motors (Pty) Ltd v Empangeni/Ngwelezane Transitional Local Council and Others 1998 (2) SA 61 (CC) (1998 (1) BCLR 1): referred to B

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) (1996 (10) BCLR 1253): referred to

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851): dictum at paras [18], [19] and [69] applied C

Girdwood v Girdwood 1995 (4) SA 698 (C): dictum at 708J - 709A applied

Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (1997 (11) BCLR 1489): referred to

Hoffmann v South African Airways 2001 (1) SA 1 (CC) (2000 (11) BCLR 1211): referred to

Langemaat v Minister of Safety and Security and Others 1998 (3) SA 312 (T): referred to D

Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 422 (CC) (2000 (7) BCLR 713): referred to

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39): referred to E

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) (1998 (12) BCLR 1517): referred to

Pretoria City Council v Walker 1998 (2) SA 363 (CC) (1998 (3) BCLR 257): dictum in para [95] applied

S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665): referred to F

S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) (2001 (5) BCLR 449): referred to

Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC): referred to.

Statutes Considered

Statutes

The Child Care Act 74 of 1983, ss 17(a), 17(c) and 20(1): see Juta's G Statutes of South Africa 2001 vol 5 at 2-96, 2-98

The Constitution of the Republic of South Africa Act 108 of 1996, ss 10, 28 and 172(2)(a): see Juta's Statutes of South Africa 2001 vol 5 at 1-46, 1-148, 1-169

The Guardianship Act 192 of 1993, s 1(2): see Juta's Statutes of South Africa 2001 vol 5 at 2-112 - 2-113. H

Case Information

Application for confirmation of and order of statutory invalidity made in the Transvaal Provincial Division (Kgomo J), reported at 2001 (12) BCLR 1225. The facts and nature of the issues appear from the judgment of Skweyiya AJ. I

P Ginsburg SC (with him M Chaskalson) for the applicants.

No appearance for the respondents.

P R Jammy (with him K Pillay) for the amicus curiae.

P Stais as the curator ad litem.

Cur adv vult. J

2003 (2) SA p201

Postea (September 10). A

Judgment

Skweyiya AJ:

Introduction

[1] The applicants, partners in a long-standing lesbian relationship, B wanted to adopt two children. They could not do so jointly because current legislation confines the right to adopt children jointly to married couples. Consequently, the second applicant alone became the adoptive parent.

[2] Some years later the applicants brought an application in the Pretoria High Court challenging the constitutional validity of C ss 17(a), 17(c) and 20(1) of the Child Care Act [1] and s 1(2) of the Guardianship Act [2] which provide for the joint adoption and guardianship of children by married persons only. In the High Court, the relevant provisions of the Child Care Act were challenged on the grounds that they violate the applicants' rights to equality [3] and dignity [4] and do not give paramountcy to the best interests of the child as required by s 28(2) of the Constitution. Kgomo J found that these provisions of the Child Care Act D and the Guardianship Act violated the Constitution and ordered the reading in...