Fraser v Naude and Others

• Jurisdiction: South Africa
• Court: Witwatersrand Local Division
• Judge: Coetzee J
• Judgment Date: 08 December 1995
• Citation: 1997 (2) SA 82 (W)
• Hearing Date: 08 December 1995
• Docket Number: 28831/95
• Counsel: P Soller (attorney) for the applicant N Davis for the first, third and fourth respondents. No appearance for the second respondent

Coetzee J:

This is an application by the applicant, Laurie John Fraser, for an interim interdict restraining the first respondent from: C

'Handing over or parting with possession of baby J (the unborn male child who forms the subject-matter of these proceedings) to anyone other than the applicant, provided that this be done when the relevant health authority (the attending gynaecologist, the hospital) certifies that baby J can be discharged and that upon the said discharge baby J be handed to the applicant.' D

Certain ancillary relief is claimed, which is not of importance at this stage. It is a matter of record that relief ancillary to the main claim is being sought.

It appears from the founding affidavit that the applicant alleges he is the biological father of the baby in utero of the first respondent. For the purposes of this application E I shall assume that he is the biological father.

Mr Soller, the attorney for the applicant, has submitted that, even if it is so that a father of an illegitimate child does not have a clear right to, inter alia, guardianship, it cannot be our law that a mother such as the first respondent is to be allowed to give her baby away for adoption as soon as it is born. I am invited to make new law and to declare F that she is not entitled to do so.

It is submitted that it is neither immoral nor unfair for a biological father to bring a claim such as the present one. The order seeks to prevent the adoption and the right to do so is because it is submitted that an illegitimate father has a right to claim access to his G child. It is also argued that these biological fathers' rights have not yet been judicially pronounced upon and it comes before me for the first time 'for everything in the law relating to illegitimate children'. It is argued that, because the father of the illegitimate child has a right to object to adoption, he therefore has some right to stop the adoption procedures. It was then argued that it is discriminatory against the father of the H illegitimate child and that it offends against his dignity as set out in s 10 of the Constitution of the Republic of South Africa Act 200 of 1993. It was then also argued that the applicant is entitled to interim relief because there would 'be no injustice done to the first applicant'. It was then argued that there are 'certain rights vested in the biological father', which is the applicant. I

I will deal with these so-called rights which he has in terms of the statute later on.

In L F Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town Municipality v L F Boshoff Investments (Pty) Ltd 1969 (2) SA 256 (C) J

Coetzee J

at 267 Corbett J (as he then was) sets out the requisites for an applicant for A temporary relief such as is being sought now, and says as follows at 267B-D:

'Briefly these requisites are that the applicant for such temporary relief must show -

(a)

that the right which is the subject-matter of the main action and which he B seeks to protect...