Fraser v Naude and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Sachs J, Yacoob J
• Judgment Date: 23 September 1998
• Docket Number: CCT 14/98
• Court: Constitutional Court
• Hearing Date: 23 September 1998
• Citation: 1999 (1) SA 1 (CC)

Chaskalson P: I

[1] This case concerns a little boy whose parents never married. Mr Fraser, the father of the child, has applied to this Court for special leave to appeal against a decision of the Supreme Court of Appeal, alternatively for direct access to this Court. It is not necessary to set out the details of the long history of this matter. That is done in the judgments J

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of the Supreme Court of Appeal [1] and other reported judgments dealing with this matter. [2] For the present A purposes it is sufficient to say the following. Mr Fraser wanted to have contact with his child and to retain his status as a parent in the face of proceedings for the child to be placed by the mother for adoption. The law as it then stood was against him. As the unmarried father of a child, his consent to the adoption was not required. Ms B Naude, the mother of the child and the first respondent in these proceedings, was the only person recognised by the law as having that right. If she consented, the adoption could proceed. If she withheld her consent, and did not act unreasonably in doing so, the adoption was not permissible. C

[2] The proceedings for the adoption of the child were brought by the adoptive parents, who are the second respondents in this matter. The adoption application was dealt with in the children's court in Pretoria North. Mr Fraser sought to intervene in the proceedings in order to oppose the adoption. He also applied to adopt the child himself. Ms Naude refused her consent to his application. The refusal of consent was not found to be D unreasonable. Mr Fraser's application was accordingly dismissed. Ms Naude gave her consent to the application made by the adoptive parents, which was then considered by the children's court and granted. Implicit in that decision was a finding that the adoptive parents were of good repute, that they were fit and proper persons to be E entrusted with the custody of the child, and that the adoption would serve the interests and welfare of the child. [3] Since birth the child has been brought up by the adoptive parents as their child. He knows them as his parents. Their family is his family. He has had no contact with Mr Fraser. F

[3] Mr Fraser has never accepted the adoption and has engaged in litigation to have it set aside. He challenged the constitutionality of s 18(4)(d) [4] of the Child Care Act 74 of 1983, which required the mother, but not the father, of a child of an unmarried mother to consent to an adoption. He succeeded, but secured no relief, as this Court for G

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good reason suspended its order to enable Parliament within two years to change the law in a manner which A would not disturb completed adoptions.

[4] Mr Fraser also challenged the validity of the adoption, contending that he had not had an adequate hearing in the children's court, and that, as a result, the...